Article 9 represents our right to not be mentally controlled by authority – allowing us the freedom to think freely. It is quite often described as “one of the foundations of a democratic society”; being protected in multiple national, European and international instruments. Our concern is how it is set out in the Human Rights Act 1998 however:
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
What does this mean?
What do the state have to do?
The right itself is set out to protect everyone from having their choice of ‘religion or belief’ interfered with. As with other rights previously discussed on the blog, the state has a positive obligation to protect such freedoms. As stated in the case of Hasan & Chaush, the UK has no discretion in deciding the legitimacy of religious beliefs or their practices, the right to freedom of religion and thought is guaranteed apart from in the exceptional circumstances listed above. How do the authorities protect such a right? They do so by ensuring that they protect all those following and practicing religions and ensuring each person can freely practice their religion or follow their beliefs without facing prejudice/ being blocked from doing so.
It should be noted that this does not mean that signatories to the Convention have to be secular (meaning they are claiming to be a religiously neutral state). If a state subscribes to a particular religion (for example, Gambia last week declared itself and Islamic State – this is not the same thing as the crazed extremist organisation, it means they live by the rules of Islam in their country), they must ensure tolerance between religious communities (Metropolitan Church of Bessarabia & ors). The reason it is asked that states ensure tolerance rather than removing tensions is simply because some tensions are not simply solved. A number of religious communities have acted violently for centuries towards others in some cases, so asking the state to re-write history and bring complete peace between certain communities would be like asking the Queen out for a swift pint – even if you ask politely, it is almost impossible that it will happen. Therefore, states would have an obligation they could not comply with, which benefits no-one.
How broad is the scope of Article 9?
So, when we say ‘thought, conscience and religion’, what does that actually mean? Does it mean that if you can believe pizza should be considered healthy and part of your ‘5-a-day’, that you can depend on Article 9 to protect you from being stopped from manifesting that belief? Maybe. It very much depends on how much research you have done to back this up really.
The scope for this right is incredibly wide. The state cannot “restrict” what it considers a thought or religion within this scope, it is an open list. The religion or belief has to be identifiable, serious, cohesive and the like. You also need to be able to identify the content of the convictions. So, if you start just making stuff up on the spot to support why you think pizza should be considered part of your 5-a-day (as well as the fact that this is quite obviously not very serious at all), you’re going to struggle to depend on Article 9. This is a ridiculous example though – the Court’s often look favourably on thoughts if there is evidence of an infringement by public authorities, due to its incredible importance in our societies, so a lot of what you think is protected.
This right does also include the right not to follow a religion – acting as a valuable right to atheists, agnostics and the unconcerned also. If you don’t care and don’t want to have a belief or can’t be bothered to work out if you’re religious – Article 9 has your back, don’t worry about it.
What are the exceptions?
Even though this is a fundamental right even amongst those in the Human Rights Act, it is not absolute. Limitations are allowed if prescribed by law and to protect our democratic society. Through globalisation (where the world has become much more inter-connected than ever before), societies have become much more plural (i.e. people of differing communities living together). So, as society has become more plural, tolerance has become more important (in terms of religion, this can be called religious pluralism). For a democratic society to be maintained, religious pluralism has to be maintained now and this is why these limitations have become more prominent in recent decades. As mentioned before, tensions have long existed between certain religious communities, so these limitations shouldn’t necessarily be seen as restrictions, rather as tools for protecting pluralism and democracy.
Much like the strictness in ensuring the State cannot restrict what is protected under Article 9, if the authorities wish to use an exception in a case of infringement of that right, they must do so in relatively strict circumstances. As much as I’m sure Nigel Farage would love it, you can’t just stop people teaching certain beliefs and shout “it’s for security reasons!”. Evidence supporting the action has to identify it as not only reasonable, but necessary for the protection of our democratic society.
How well do we protect Article 9?
The UK enjoys the luxury of becoming more and more multi-cultural every day. We all live amongst human beings with sometimes vastly-different beliefs, affording us incredible opportunities to learn about an infinite number of things that people did not have the same opportunities to take advantage of even 50 years ago. Generally our society embraces this religious pluralism, supporting the way people choose to live their lives and protecting autonomy and freedom of choice (both central to the mechanics of this article).
However, not all is perfect of course. Since 9/11 especially, we have seen increased tension and aggression towards Muslims. Even more worryingly, this year we have seen increases in ‘Islamophobic’ behaviour not only in the UK, but in the majority of global Western countries. With the rise of Daesh and their engagement with things such as social media on a level we have never seen from terrorist organisations, the authorities face a difficult period for the foreseeable future in not only protecting this right, but correctly using exceptions to it.
For example, if we analyse the almighty tool that is Donald Trump once more, his comments about banning non-American Muslims from entering the UK would have seriously damaging effects on Article 9’s application if they were indeed in Europe and signatories to the Convention. It would certainly damage the freedom Muslim civilians in America feel they have in practicing their religion.
In the face of terrorism we face a very real war in protecting the freedom to religion. The UK is certainly showing signs of growing intolerance, with incredible increases in support for far-right parties speaking out against people who aren’t like them (“them” often being white and unable to tell you what ‘halal’ actually means). However, as I have said above, we have an incredible blessing with our growing multicultural society and there are equally signs of growing support for pluralism and protection of freedom of religion and thought.
There’s your EXTREMELY brief description of Article 9 and I’ll see you tomorrow to discuss the freedom of expression!