Case No. UKUT-00286-(IAC)

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. 19. A distinctive feature of the Human Rights Act’s treatment of the right to freedom of thought, conscience and religion is to place it in a distinct category of protection and to create a statutory right which is independent of the Article 9 Convention right. This is found in s.13: 13. Freedom of thought, conscience and religion (1) If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right. (2) In this section “court” includes a tribunal. 20. It is first necessary to consider the relationship between Article 8 and 9. The two Articles are quite separate; nether one is subservient to the other. Any suggestion that the appellant’s Article 8 rights were improperly assessed by reason of the failure to consider his Article 9 rights is misplaced. An individual’s Article 9 rights are free-standing. So much is clear from s. 1 of the Human Rights Act which incorporates the ECHR into domestic law and does so without creating a hierarchy of rights such that Article 9 rights are seen as a constituent part of the individual’s Article 8 rights: 1 The Convention Rights E+W+S+N.I. (1)In this Act “the Convention rights” means the rights and fundamental freedoms set out in— (a)Articles 2 to 12 and 14 of the Convention, 21. The Convention rights are domesticated into United Kingdom law by s.6: 6 Acts of public authorities E+W+S+N.I. (1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right. 22. Turning to s. 13 of Human Rights Act, the reference to the ‘importance of the right’ to freedom of thought, conscience and religion is striking in that no other Convention right is afforded this treatment. 23. Secondly the right to freedom of thought, conscience and religion is protected not only for the benefit of individuals but organisations: ‘a religious organisation…itself’ . This is something of a contradiction in terms: a human right enjoyed by an organisation . This is comprehensible by reference to the members of an organisation enjoying human rights but s. 13 goes further by distinguishing between the human rights of its members and the human rights of the organisation: ‘ a religious organisation (itself or its members collectively) ’. Thus, for example, the Church of England has the Convention right to freedom of thought, conscience and religion alongside its members collectively and individually. 24. Section 13 of the Human Rights Act appears to be the result of the decision of the ECtHR in X and the Church of Scientology v Sweden (Case 7805/77) in which the Court considered, as a preliminary issue, whether the Church of Scientology, which had legal personality, was capable of exercising Article 9 (1) rights. The Commission, reversing its earlier position, considered that the distinction between Church and its members was essentially artificial. The Court upheld the Commission’s revised view: the church in its application was in reality doing so on behalf of its members. 25. Thirdly, s.13 is itself free-standing. It is entirely separate from the domestication into United Kingdom law of the ECHR. Hence the right to freedom of thought, conscience and religion is protected by two independent sections of the Human Rights Act: s.6 and s.13. In granting permission Deputy Upper Tribunal Judge Saini said The Tribunal erred in its consideration of Article 8 in relation to the appellant’s functions for the Afghan Islamic Cultural Centre (“AICC”) and the effect his removal will have upon the Article 9 ECHR rights of the congregation through s. 13 HRA 1998. 26. Insofar as this passage might suggest there was a correlation between Article 8 and 9 such that the Article 9 claim is advanced through the medium of Article 8 and, further, that Article 9 is the prism through which s.13 is assessed, I have concluded that this is not the correct analysis of the relationship between these various provisions for the reasons I shall later give. Each is independent of the other and requires separate assessment. 27. Fourthly, it is directed towards Courts and Tribunals. They alone bear the statutory duty to apply it. Nevertheless, out of a due sense of deference, decision makers themselves might properly take its provisions into effect, if they are not already doing so.