Article 9: Freedom of Thought, Conscience, and Religion
Article 9: Freedom of Thought, Conscience, and Religion
Overview
Author: Howard Davis, Reader in Public Law, Bournemouth University
Publication Information:
Published in print: 17 May 2021
Published online: September 2021
Abstract:
Introduces and guides readers through key points of law and legal debate related to the European Convention law and domestic law under the Human Rights Act (HRA).
Engages readers with questions, discussions, and self-test questions to assess understanding.
Focuses on Article 9, which establishes a general right to freedom of thought, conscience, and religion, and its qualified nature regarding restrictions.
Important themes include conscientious objection, religious dress in employment, and broader implications regarding freedom of manifesting beliefs.
Learning Objectives
Understand the importance of religious belief and the state’s neutral role.
Recognize the absolute protection of an individual's beliefs.
Identify the conditions under which manifestations of beliefs may be lawfully interfered with.
Importance of Article 9
Addresses critical questions such as blasphemy laws and religious dress restrictions.
Confers rights:
Right to freedom of thought, conscience, and religion.
Right to change one's religion or belief.
Right to manifest one's religion or beliefs, both privately and publicly.
Article 9(1) provides for the right to manifest beliefs subject only to lawful limitations necessary for a democratic society.
Context of Article 9
Article 9 embodies the ‘pluralism’ of the Convention, opposing state-enforced ideologies.
Recognizes the risk of religious manifestations interfering with public interests or the rights of others.
Sees religion becoming politicized in contemporary discussions regarding various social issues like education and women’s dress codes.
Structure of Article 9
Article 9(1)
General Right: Establishes a right to freedom of thought, conscience, and religion that cannot be restricted by the state.
Manifestation: Recognizes the right to manifest religion or beliefs in worship, teaching, practice, and observance.
Article 9(2)
Circumstances under which manifestations may be restricted:
Must be prescribed by law.
Must aim towards public safety, order, health, morals, or the rights/freedoms of others.
Courts assess whether the state has justified interferences with manifestations of belief.
Contextual Understanding of Article 9
Commonalities with Articles 8 (right to respect for private life), 10 (freedom of expression), and 11 (freedom of assembly and association).
Examples demonstrate how Article 9 connects to other rights:
Article 10: restrictions on religious expression.
Article 11: conflicts with restrictions on religious organizations.
Article 8: interference with private life due to religious practices.
Section 13 of the HRA
Special provisions for the protection of religion included due to fears of the Human Rights Bill imposing unreasonable restraints on religious groups.
Courts must regard the significant importance of Article 9 in relevant cases.
Analysis of Article 9(1)
Restriction of Thought and Conscience
The right to change one's religious beliefs is absolute.
Restrictions on manifestations of beliefs require justification under Article 9(2).
Example: Restrictions on movement to attend places of worship violate Article 9.
Importance of Religion and Belief
Recognized as vital elements of identity for believers and as an asset for non-believers.
The pluralism in a democratic society aids its functioning; Article 9 upholds this principle.
Definitions
Religion: Encompasses major organized religions and recognized beliefs deemed as religious.
Thought and Conscience: Includes atheism, agnosticism, and other non-religious beliefs.
Accepted beliefs include pacifism, vegetarianism, and even philosophical commitments like climate change activism.
Role of the State
Neutrality
State must remain neutral, avoiding favoritism towards any religion.
Example: Involvement of Bulgarian government in religious disputes was ruled as a violation of Article 9.
Established Religion
Does not prevent the state from having officially recognized religions (e.g. Church of England).
However, religious oaths for parliamentarians and imposed teachings are unconstitutional under Article 9.
Legal Recognition and Administrative Challenges
States must avoid unreasonable delays in recognizing religious entities, otherwise might breach Articles 9 and 11.
Positive Duties of the State
Must protect believers from intolerance and discrimination, exemplified in cases involving Jehovah’s Witnesses in Georgia.
Manifestation of Religion Under Article 9
Naturally Constitutive Actions of Belief
The right to manifest religion includes actions stemming from faith such as:
Dress codes (Islamic headscarf).
Dietary restrictions (Jewish kosher laws).
Examples of Manifestation
Manifestations of belief cannot merely be actions motivated by beliefs:
Distribution of pacifist materials does not count as a manifestation under Article 9.
Specific instances (such as a conscientious objection) may not manifest under Article 9 protections.
Evaluation of Beliefs
The jurisprudence may require that beliefs attain a certain level of cogency and respectability to be protected by Article 9, alongside the broader values of pluralism and democracy.
Article 9(2): Restrictions on Manifestations
Overview
Genuine expressions of belief may be limited if justified under Article 9(2).
The necessity of restriction must cater to the diverse beliefs within society.
Specific Limitations
The limit must be prescribed lawfully and chart aims towards public safety and order.
Court balance includes examining the necessity of state actions fostering a tension between individual freedom and societal benefit.
Situational Analysis
Cases demonstrate the necessity of showing that a restriction is justified within the framework set, emphasizing the need for transparency in state actions.
Conscientious Objection
Historical Context
The ECtHR previously hesitated to recognize conscientious objection under Article 9 due to overlaps with forced labor exemptions.
Recent developments (such as the Bayatyan case) shifted the Court’s position aligning with growing international recognition of conscientious objection.
Employment and Religious Rights
Employment Protections
The Equality Act 2010 necessitates protections against employment discrimination on religious grounds.
Courts favor a wide margin of appreciation for employers balancing public duties against religious manifestations in professional contexts.
Case Law Examples
Eweida and Others v UK
Addresses claims surrounding manifestations of belief within employment settings and how courts assess proportionality and justification of restrictions.
General Restrictions on Dress
Ongoing debates on religious dress manifesting public identity and implications within secular frameworks.
Legal considerations arise around Muslim women's rights to religious dress versus state interests in secularism.
Other Relevant Cases
R (Begum) v Governors of Denbigh High School discusses balancing individual expression against institutional policies.
Several decisions on school uniform requirements versus manifesting religious identity extensively analyzed.
Summary
Absolute Protection of Belief: Rights under Article 9 cannot be interfered with, while manifestations can be restricted within certain confines.
Discrimination based on belief manifests in employment law and must respect the balance of individual rights and obligations.
Self-Test Questions
Distinguish the manifestations of belief from actions motivated by belief according to the ECtHR.
Identify legitimate purposes for restricting manifestations of belief.
Consider the circumstances under which courts may evaluate the credibility of beliefs for Article 9.
Compare Article 9 with Article 2 of the First Protocol regarding religious convictions in education.
Discuss the provision for conscientious objection under Article 9.
Highlight ECtHR cases on bans related to religious dress and expressions.
Exam Questions
Evaluate the ECtHR’s justification for France’s ban on the burqa regarding Article 9.
Advise on Article 9 considerations related to military obligations faced by public servants objecting to deployment for differing reasons.
Suggested Further Reading
Davis, H. "Human Rights Law Directions"
Ahdar, R. & Leigh, F. "Religious Freedom in the Liberal State"
Dogˇan v Turkey (2017) 64 EHRR 5