Religious Freedom in Life and Death: The limits of Article 9
Death is part of life, and dealing with bereavement is a universal human experience, regardless of religion, culture or affluence, but the rituals, customs and beliefs surrounding the process are extremely varied, especially in a society as diverse as the contemporary United Kingdom. Nevertheless, the practicalities of sharing resources and physical space necessitate the agreement of some collective norms, at local as well as national level, and a recent High Court decision in R (on the application of Atta Ul Haq) v Walsall MBC (2019), reveals how complicated such practicalities can be.
In a nutshell, the Local Authority had decided after public consultation that the municipal burial ground would follow the ‘lawn principle’ modelled on Commonwealth War Graves. The intention behind the policy was to ensure uniformity of style, and an absence of any barriers or fences between burial plots, so that visitors would have a peaceful, uninterrupted view, and no particular graves would appear more prominent or grandiose than others. The applicant brought a challenge, because the rules imposed meant that he was unable to erect raised edging around his father’s resting place. This was important to him, as his particular branch of Islam taught that graves were sacred spaces where human feet should not tread, and he wanted this barrier to reduce the risk of people walking over the ground where his father lay.
Article 9 of the European Convention on Human Rights gives individuals not just a right to hold their personal beliefs, but also guarantees the freedom to manifest them. The practical expression of religious doctrine can only be restrained or interfered with, if there is some good objective reason for this, and the level of interference is in proportion to the underlying need. Here, the court accepted that the applicant’s religious rights had been infringed. Although it was not sufficient to argue that he could have chosen a different cemetery for his father, given the practicalities of his situation, and especially the Islamic obligation to avoid delay in the interment, the limitation imposed on the applicant’s religious freedom was held to be justified in all of the circumstances. Significantly, the policy of the Local Authority had been in place for a number of years, and it had emerged from, and been affirmed by, widespread consultation (which included local Muslim communities). Furthermore, the Council was well placed to assess the practicalities of the request, and was allowed a wide margin of judgement when it came to deciding whether to allow someone to erect a potential trip-hazard.
This is a classic instance of collective needs and decisions ultimately taking precedence over individual interests. When providing public services and administering public space, it is impossible to meet the desires of all citizens all of the time, and some compromise is necessary. Of course, this is often very difficult for individuals who are disappointed in their plans and requests, especially in relation to something as sensitive as the burial of a loved one.
Moreover, it is worth noting that social needs and priorities tend to change over time, in this realm as in others, and anyone lucky enough to live near a leafy, rambling Victorian cemetery, with a chaotic assortment of monuments and tombs, would struggle to imagine our ancestors easily taking to neat, uniform burials. Equally, there has been a shift in Britain in recent decades over the acceptability of outdoor funeral pyres. Certainly, different ethnic and cultural groups move in and out of particular geographical areas, and this may have an impact on what is appropriate at the local level in terms of collective wishes, or at least preferences. However, given that the Council in this case had recently reviewed its policy and carried out fresh consultations, it would be unreasonable to suggest that they had not taken account of this. All things considered, this appears that the outcome of this litigation was the correct one in legal terms, albeit understandably disappointing for the applicant and his family.
Is the UK Ready for Open Funeral Pyres? National Association of Funeral Directors (9/3/18)