The Human Rights Act 1998 has led to an increase in domestic litigation concerning Article 9 of the European Convention on Human Rights (ECHR).Footnote 2 Most such cases have been unsuccessful,Footnote 3 particularly at higher level.Footnote 4 Moreover, such claims have increasingly failed due to lack of interference under Article 9(1) rather than on grounds of justification under Article 9(2).Footnote 5 This has meant that litigants in religious dress cases are now arguing anything but Article 9: the most recent case, concerning the wearing of the Sikh Kara in Aberdare,Footnote 6 was successful because, while the school saw the issue as one concerning Article 9, the claimant's legal team relied instead on race and religious discrimination laws.Footnote 7 It is not surprising, therefore, that the House of Lords rejected the most recent argument made on grounds of Articles 9 and 14. It is the merits of that argument and the haste displayed in its rejection that are the focus of this brief comment.
THE DECISION OF THE HOUSE OF LORDS
Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-day Saints Footnote 8 concerned a group of buildings in Chorley, Lancashire, which had been held not to be entitled to the exemption for non-domestic rates pursuant to paragraph 11 of Schedule 5 to the Local Government Finance Act 1988, as amended. This provides an exemption for ‘a place of public religious worship’ and ‘a church hall, chapel building or similar building used in connection with a place of public religious worship’. The valuation officer, who had accepted that the stake centre, with its chapel, associated hall and ancillary rooms, was a ‘place of public religious worship’, concluded that the temple was not, on the grounds that it was open only to a particular class of Mormons (‘Patrons’) who have a ‘recommend’ from the bishop after demonstrating belief in Mormon doctrine, an appropriate way of life and payment of the required contribution to church funds.
The House of Lords agreed, dismissing the claim. There was no reason to depart from the judgment of the House in Church of Jesus Christ of Latter-day Saints v Henning (Valuation Officer),Footnote 9 which had held that the words ‘place of public religious worship’ could not apply to a place from which the public was excluded. Moreover, the temple was not entitled to exemption as being ‘a church hall, chapel building or similar building used in connection’ with a place of public religious worship. Henning was also fatal to this claim, since it had settled that the use of the temple was not ancillary to the use of the stake centre but separate and independent. As Lord Hoffmann remarked, to decide otherwise ‘would be having the tail wag the dog’.Footnote 10
While a human-rights-based argument had not been made at lower levels,Footnote 11 the appeal to the House of Lords included the claim that section 3 of the Human Rights Act 1998 required the exemption in the 1988 Act to ‘be read and given effect in a way which is compatible with the Convention rights’. It was submitted that the lack of ‘public’ access was a manifestation of the Mormon faith and so to deny the exemption on that ground was to discriminate against them on grounds of religion, contrary to Articles 9 and 14 of the ECHR. Lord Hoffmann, Lord Hope of Craighead and Lord Scott of Foscote considered but rejected this argument. While Lords Hoffmann and Hope concluded that the claim fell at the first hurdle, in that there had been no interference with or discrimination against the appellant's human rights, Lord Scott held that there had been an element of such discrimination but that this was justified. These two different approaches, though reaching the same conclusion, merit separate consideration.
NO INTERFERENCE OR DISCRIMINATION
Lords Hoffmann and Hope held that there was no interference with Articles 9 and 14. Lord Hoffmann deemed that, in order to constitute discrimination on grounds of religion, the alleged discrimination must fall ‘within the ambit’ of Article 9. He held that this had not been met: the liability of the temple to a non-domestic rate did not of itself prevent Mormons from manifesting their religion. The church was not being taxed on account of religion: rather, it was the Mormon religion that prevented them from providing the public benefit necessary to secure that particular tax advantage.Footnote 12 This meant that their loss ‘was too remote from the interference with the right in question’: he reasoned that the Mormons' loss was akin to that of a Sabbatarian who could not complain that he was discriminated against because he earned less money as a result of being unable, on religious grounds, to provide services on the Sabbath.Footnote 13
Lord Hope agreed, and seemed to go further than Lord Hoffmann in not even recognising that there was any trace of indirect discrimination: for Lord Hope, it was definitive that the legislation was ‘not directed at Mormons because of what they believe in’ and that it ‘applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship’.Footnote 14 Lord Hoffmann, by contrast, saw the claim as potentially being one of indirect discrimination under Article 14 but held that the case had not been made:Footnote 15 he briefly noted that, even if there was such indirect discrimination, it would be justified because Parliament must have a wide discretion in the area of exemption to taxation.Footnote 16
This reasoning seems to misunderstand Article 14. Although Article 14 only forbids discrimination in regard to ‘the rights and freedoms set forth’ in the Convention,Footnote 17 this does not mean that a ‘violation of a substantive Article need to be established at all in cases involving discrimination’ under Article 14.Footnote 18 Lord Hoffmann incorrectly sees the test that the alleged discrimination must fall ‘within the ambit’ of Article 9 as requiring an actual violation of Article 9. Yet, as the European Court of Human Rights has confirmed:
a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature.Footnote 19
There will be discrimination ‘if the distinction has no objective and reasonable justification’.Footnote 20 Such infringement of Article 14 will only be justified if it pursues a ‘legitimate aim’ and if there is a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.Footnote 21
Thus, to focus entirely on whether there would have been a violation of Article 9 is erroneous.Footnote 22 The Strasbourg decision in Thlimmenos v Greece,Footnote 23 a case alleging breach of Articles 9 and 14 (albeit in the different context of holding a criminal record for refusing, on grounds of religion or conscience, to wear military uniform) may be instructive, especially since Lord Hoffmann referred to it in the course of his judgment.Footnote 24 In that case, Strasbourg simply accepted that the ‘set of facts’ complained of fell ‘within the ambit’ of Article 9 since it was ‘prompted’ by the claimant's religion or belief.Footnote 25 The Court did ‘not find it necessary’ to examine whether the facts ‘amounted to interference with his rights under Article 9(1)’ but focused instead on Article 14,Footnote 26 holding that there would be discrimination, inter alia, where ‘States treat differently persons in analogous situations without providing an objective and reasonable justification’.Footnote 27 The focus and approach of Lords Hoffmann and Hope thus seems deficient.Footnote 28
DISCRIMINATION BUT JUSTIFIED
The approach of Lord Scott of Foscote is therefore preferable, since he noted that the absence of ‘an actual breach of the substantive article’ is not required for an allegedly discriminatory act said to be in breach of Article 14.Footnote 29 Having stated briefly that ‘levying of taxation on a place of religious worship … would be capable in particular circumstances of constituting a breach of Article 9’, he preferred to focus upon the question of whether such discrimination was justified.Footnote 30 However, his very brief consideration of the question of justification is problematic.
Lord Scott concluded ‘unhesitatingly’ that such discrimination was justifiable and within the margin of appreciation available to signatory states since states may recognise that ‘although religion may be beneficial both to individuals and to the community, it is also capable of being divisive, and, sometimes, of being dangerously so’.Footnote 31 There was ‘every reason’ why a state should adopt a general policy where fiscal relief for premises used for religious worship was available where the premises were open to the general public and withheld when they were not, since ‘secrecy in religious matters provides the soil in which suspicions and unfounded prejudices can take root and flow; openness in religious practices, on the other hand can dispel suspicions and contradict prejudices’.Footnote 32 It is questionable whether Lord Scott's abstract and detached consideration of the issue of justification meets the Strasbourg requirements of proportionality: it seems difficult to maintain that such discrimination against Mormons on the basis of their exclusion of members of the public is discriminatory but can be justified by an obtuse assertion that states prefer religious bodies not to be secretive.
CONCLUSIONS
To an extent, the appellants' failure in Gallagher can be summed up in one word: Henning. However, despite the importance of this precedent, the lack of sophistication with which the human rights argument was treated is also noteworthy and disappointing. The judgments of Lords Hoffmann and Hope are simply the latest in a significant line that has ‘filtered out’ the human rights claim on the basis of interference under Article 9(1), albeit with a light obiter discussion of justification under Article 9(2). Such an approach is even more insufficient in the present case, where the claim was made under both Articles 9 and 14. While Lord Scott's correct understanding of Article 14 is welcome and preferable to that of his fellow law lords, his approach to justification seems wanting.
Exemption from taxation for religious purposes is a privilege and it is surely right that the legal mechanisms regulating that privilege are rigorously applied. However, it is also vital – especially in an age of religious pluralism and diversity – that such mechanisms do not indirectly prejudice minority religious groups. The attitude of both the Court of Appeal and the House of Lords in Gallagher is perhaps best summed up in the comments of Neuberger LJ in the Court of Appeal, in which he stated that the perspective of the court had to ‘be external, objective and analytical, not internal, subjective or holistic’ since the ‘exercise we are carrying out is concerned with a topic which cannot be characterised as remotely religious, namely rating legislation’.Footnote 33 Given the enactment of the Human Rights Act 1998 and the new law on religious discrimination, this attitude seems outmoded:Footnote 34 the judiciary needs to recognise that the letter of English law now clearly affords protection for believers who are inadvertently disadvantaged, but disadvantaged nonetheless, because of their religion or belief. The reasoning of, if not the actual decision reached by, the House of Lords in Gallagher should thus be a matter of concern, especially within the context of the curtailment of the freestanding Article 9 guarantees in other cases.
