There’s lots in today’s Queen’s Speech for those interested in Law and Religion / Freedom of Religion or Belief. Of particular note is the statement that:
‘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 refers to a proposed new Bill of Rights that will reform the Human Rights Act. The exact nature of this reform remains to be seen but it is of note that responses to a recent consultation largely rejected the need for and types of reform proposed.
There is a real risk that reform may weaken rather than strengthen rights. And that it could have a significant effect on terms of freedom of religion or belief.
The wording from the speech could be significant and could suggest that it is the role of the courts that will be reformed in light of judgments that the Government has disagreed with.
That last sentence alone should send shivers down the spine and would have been unthinkable just a few years ago. But given the anti-lawyer rhetoric of the current Government (no doubt inspired in part by the former profession of the Leader of the Opposition) and the desire ‘to seize the opportunities of the United Kingdom’s departure from the European Union’ (to quote another part of the speech) then the long promised / threatened reform of the Human Rights Act is now firmly on the table and its difficult to assess how far the Government will go.
(The fact that the European Convention on Human Rights, which the Human Rights Act incorporated into English law, is a product of the Council of Europe – an institution that is separate from the EU – has not stopped it being conflated within the Brexit debate.)
Why does reform of the Human Rights Act matter in terms of freedom of religion or belief?
The Human Rights Act 1998 requires legislation to ‘be read and given effect in a way which is compatible with the Convention rights’ (s3(1)). The relevant Convention right – Article 9 of the European Convention on Human Rights protecting freedom of religion or belief – has quickly become the bedrock of this freedom in the UK. So, weakening the importance of Article 9 including whether it can be argued in courts would have a dramatic effect.
Moreover, many legal provisions protecting religion have been interpreted by courts and other bodies to include non-religious beliefs since freedom of ‘religion or belief’ is protected as a Convention right under Article 9. 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 Human Rights Act 1998 also requires courts and tribunals to ‘take into account’ – though not necessarily follow – the jurisprudence of the European Court of Human Rights (s2(1)). This means that the case law of the European Court of Human Rights that has detailed, nuanced and occasionally corrected domestic interpretations of the right to manifest religion or belief can be taken into account by judges, policymakers and indeed employers. Again, reform of the Human Rights Act risks losing this and reducing and limiting rights.
The Human Rights Act 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 Convention compliant, 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 re-balancing may have harmful consequences both foreseen and not foreseen.
Human rights law has settled down over the last twenty years. Yes, there have been some controversial and questionable decisions. But that isn’t justification to tear the whole thing down since that is likely to do more harm than good.
The proposals for a Bill of Rights will therefore require close attention. Similarly it will be worth keeping an eye on other matters mentioned in today’s Queen’s Speech. The Public Order Bill includes limits on public protest which, to put it mildly, have already been controversial and some of which were voted down in the previous Parliamentary session. These raise questions of free speech that are linked to Article 9 freedoms of thought, conscience and religion.
There is also to be a new education bill. Humanists UK have suggested that this will be the vehicle which will allow the closure of what they call illegal unregistered schools, many of which are religious:
It’s unclear as yet what else will appear in the education bill. It might be optimistic to hope that reform of religious education or worship may be included. Reform of religious worship was the focus of a private Members bill which fell at the end of the last Parliament session. As I discuss in my forthcoming book, the law on religious education has recently been reformed in Wales, leaving England behind with its antiquated laws: https://anthempress.com/religion-in-schools-learning-lessons-from-wales-pb Perhaps both or either matters will be the subject of a new private Members bill.
Also, looking to the future, it is to be hoped that the next Queen’s Speech includes comprehensive reform of marriage law following the final report by the Law Commission of England and Wales that is due in July. Reform is much needed for unregistered religious marriages and weddings conducted by humanist and independent celebrants, as I explain in my book on the matter: https://bristoluniversitypress.co.uk/religion-and-marriage-law
Update (10.05.22, 5.45pm)
On the Bill of Rights proposal see further this briefing note
The Bill of Rights section has been expertly analysed by Joshua Rozenberg QC at: https://rozenberg.substack.com/p/a-bill-of-rhetoric
This underlines many of the concerns mentioned above – especially changing rules of interpretation which will affect ‘beliefs’.
The idea that domestic courts could not go further than Strasbourg is also objectionable and goes against some of the objectives of the bill. The ‘significant disadvantage’ test would make Article 9 moribund – taking the case law back to pre-Eweida.
There’s the question too of how this would affect other areas of law – such as discrimination law where the Equality Act case law relies upon Article 9 principles.
Definitely worth keeping an eye on this and seeing what the draft of the Bill looks like.