Religious Rights

January 24th, 2019

R (Atta Ul Haq) v Walsall Metropolitan Borough Council (2019) EWHC 70 (Admin) was a claim for judicial review in which the Claimant challenged the lawfulness of a policy adopted by the Defendant, Walsall Metropolitan Borough Council, entitled ‘Rules and Regulations in respect of Cemeteries and Crematoria’ (the “Cemetery Policy”), specifically those provisions which preclude individuals from erecting raised edging around the grave of a deceased person. The Claimant is a practising Barelvi Muslim. His father was a prominent member of the community and an Imam, passed away on 21 June 2015 and was buried on the following day at Streetly Cemetery. It is administered by the Defendant local authority. The Defendant had refused to give the Claimant permission for the erection of a four-inch raised marble edging around his father’s grave. The Claimant’s request arises from his religious belief that the grave is sacrosanct and stepping on the grave is an offensive, religiously proscribed act that must be prevented.The Claimant challenges the Cemetery Policy in light of the Defendant’s refusal on the grounds, first, that such action constitutes a breach of Articles 9 and 8 of the ECHR; and secondly, that it constitutes unjustified discrimination contrary to Sections 13 and 19 of the Equality Act 2010. The Claimant sought an order (a) quashing the Defendant’s policy and (b) prohibiting the Defendant from enforcing the prohibition on the edging of Muslim graves.

The Defendant local authority is a “burial authority” within the meaning of Section 214 of the Local Government Act 1972. Burial authorities may provide and maintain cemeteries whether in or outside their area. Subsection (3) confers power on the Secretary of State to make provision by order with respect to the management, regulation and control of the cemeteries of burial authorities.   The relevant order which has been made is the Local Authorities’ Cemeteries Order 1977 (SI 1977 No. 204) (“the Order”).

The Claimant advanced four grounds of challenge to the Defendant’s policy:

(1)       Breach of Article 9 of the ECHR.

(2)       Breach of Article 8 of the ECHR.

(3)       Direct discrimination contrary to Section 13 of the 2010 Act.

(4)       Indirect discrimination contrary to Section 19 of the 2010 Act.

The Court found it unnecessary to set out the relevant principles under Article 9 of the ECHR in detail here since the Divisional Court recently had occasion to set out those principles in R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin); [2018] 3 WLR 1354, at paras. 93-99.

The principal issue in the case arose under Article 9. The other arguments, under Article 8 and under the Equality Act 2010, raise no materially different issues, save for one point under the 2010 Act. Applying the principles to the facts of the particular case, the Court’s views were as follows.

First, there could be no doubt that the Claimant did have a sincere belief, derived from his religion, that people should not step onto his father’s grave.

Secondly, the Claimant’s wish to have the marble edging in question was sufficiently linked to the underlying belief to constitute a manifestation of that belief.

Third, this was a case where there had been an interference by a public authority with the Claimant’s rights under Article 9.

Fourth, the interference therefore had to be justified as being in accordance with paragraph (2) of Article 9.

Fifth, as to the first requirement of paragraph (2), any interference with Article 9 rights was prescribed by law.

Sixth, turning to justification under Article 9(2), the Defendant clearly had one or more legitimate aims: these could be described generically as protection of the rights of others.

Seventh, the means adopted by the Defendant had a rational connection to those legitimate aims.

Eighth, when it comes to whether there are less intrusive means and whether the Defendant had maintained a fair balance between the rights of the individual and the general interest of the community, a certain margin of judgement must be afforded to public authorities in this sensitive area.

Ninth, what the Defendant had decided clearly fell within its margin of judgement.

Tenth, on the facts of this particular case, the Defendant had acted in a way which was justified under Article 9(2), bearing in mind the particular following factors:

(1)       The Defendant consulted widely on the revision of its policy in 2016. That policy had been in place for many years before that.

(2)       The Defendant has been willing to accommodate the wishes of various parts of the Muslim community, in particular by permitting mounding although not marble edging around graves. This is important not only because it shows a willingness to be flexible on the part of the Defendant authority. It has shown that it is prepared to make reasonable accommodations to its normal policy in order to assist those Muslims who wish to mark their loved ones’ graves with a raised grave while maintaining the general appearance of a lawn cemetery.

(3)       The Defendant was well placed with its experience and knowledge of the requirements of cemetery maintenance to form a judgement as to the practicalities, including health and safety issues.

(4)       Legitimate distinctions do exist from the children’s section of the cemetery.

In summary, the Court’s conclusion was that there had been no breach of Article 9 in this case. It followed that there had been no breach of Article 8.

Turning to the 2010 Act, the claim based on indirect discrimination on grounds of religion in substance raised the same issues as those that arose under Article 9. The rejected that claim for the same reasons.

That left the claim for direct discrimination on the ground of age, because the family of a baby or infant are treated differently from that of an adult who has died. On the facts of this case, the Court reached the conclusion that the Defendant had shown that there was sufficient justification for the difference of treatment. In particular this was because of the objective consideration that there is more space in the children’s sections of the cemetery. There were also different maintenance considerations. The Defendant was also entitled to reach the view it did because of sensitive emotional matters. Accordingly, there was no breach of the 2010 Act.

The claim for judicial review was dismissed.

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