Article 9 of the Human Rights Act is one which relates very heavily to the reason the European Convention on Human Rights was first put together. It sets out that everyone has the right to freedom of thought, conscience, and religion, including the right to change that religion or belief. It also sets out that everyone has the right to manifest their religion or belief either alone or in community with others, including worship, teaching, and practice. Why is this so important? Put simply, because millions of murdered Jews testified to it’s importance.
This is a right which was stripped from millions during the second world war, as well as in various other acts of oppression. But it is also a right which has a very real relevance to life today.
On the one hand, many will claim Britain to be a Christian country, Bishops are directly involved in the passing of laws, the head of state is also the head of the Church of England and MPs have to swear allegiance to her when they take their seat in the commons, there are more Christians in this country than members of any other single religion, and all our recognised national holidays coincide with Christian festivals. On the other hand, most claim that politics is secular and divorced from religion, there are more non-Christians in the country than there are Christians, there are members of all religions sitting in both the Commons and the Lords, and Britain has adopted a generally tolerant approach to members of other religions taking time off to celebrate their own festivals. However, the articles of the Human Rights Act are not necessarily there to simply protect the status quo. They are there primarily to protect against the reduction of liberties in order to prevent a recurrence of the atrocities committed by Nazi Germany and others. And whilst the articles tend to protect minorities most, this is only because it is minorities who are most frequently oppressed. In reality, the articles protect us all. So it doesn’t matter what religion you believe in, or what belief you have. You may be a Christian, an Atheist, a Jew, an Agnostic, a Muslim, a Humanist, a Hindu, a Scientologist, or anything else at all. Article 9 protects your freedom of belief and of practice.
Whatever you believe in, imagine for a moment that you were not allowed to come together with others who believe the same in order to practice your belief. Imagine you were forbidden from teaching, or even talking to others about it. Imagine that possessing any books connected with your belief was a crime. Imagine you were required to observe a particular religion, other than your own, and that if you didn’t you could be arrested. Imagine Article 9 didn’t exist at all.
Fortunately, it does and, actually, it is one of the least contravened articles in this country. Despite the odd exception, we are a fairly tolerant nation. I would much rather we were not just a tolerant nation but an understanding one, but tolerant is an acceptable place to be, I think. In fact, when I did a small amount of research into court claims brought under the Human Rights Act by prisoners, only one out of around a hundred sample cases was brought under breach of Article 9.
This is the case of a Muslim prisoner who was fasting, as is common practice in Islam. The prison staff asked him to provide a urine sample for a drugs test and the prisoner attempted to comply, but could not produce enough urine for a sample to be taken. He tried again three more times, with an hour’s interval in between. Each time he failed to produce enough urine he was offered a drink of water. Due to the fact that he was fasting, he said that he could not accept as drinking would break his fast which, once started, he could not break until sunset, which was going to be at 4:30pm. After the fourth attempt the officers ended the process and placed the prisoner on report for refusing a lawful order to provide a sample. The adjudication was heard and, on the basis that the prisoner had refused to drink the water offered, he was found guilty. However, he brought the case to court under breach of Article 9 and the court ruled in his favour. They said that there was no doubt that, by refusing the water, he had refused to comply with the order given, but that did not mean that the order was a lawful one. In the circumstances the court found that the last attempt to take a sample from the prisoner was at 1pm. The prisoner had said his fast would end at 4:30pm. There was no evidence that a sample taken after 4:30pm would be of any less forensic value than one taken at 1pm, or that delaying for the later opportunity would have been disproportionately expensive. Whilst certain rights under the Human Rights Act (including Article 9) can be interfered with where it is absolutely necessary, it was not so necessary in this case and therefore the prisoner should have been allowed to provide a sample after breaking his fast at 4:30pm. The order was therefore an unnecessary interference with the prisoner’s Article 9 rights and hence was not a lawful one. This being the case the prisoner had not refused to comply with a lawful order and the guilty adjudication against him was overturned.
All of that may seem relatively minor to someone who is neither a Muslim nor a prisoner, but perhaps I can show the significance of the principle. If everyone was required to obey orders, regardless of whether they were lawful under the Human Rights Act, where would you draw the line? If someone orders you to break your religiously mandated fast in order to provide a urine sample, would you? How about if someone asks you to submit to a strip search in front of a member of the opposite sex? What if someone orders you to eat or drink something your religion forbids? And what would you do if they instructed you to pray to a god you don’t believe in? What would you do if they made you attend a weekly session of worship for a religion other than your own? Where would you draw the line? Because all of these things are things which actually happened in borstals around the country before the Human Rights Act came into force. This isn’t theory, this is reality. This is what happens when Article 9 is not in place. So, don’t listen when you hear MPs say that human rights were protected in this country prior to the Human Rights Act. They were protected only by lip service. If a British Bill of Rights were to replace the Human Rights Act it would either have to go one way or the other. It would either have to return to the days where people could be ordered to contravene their own beliefs under threat of punishment, or it would have to continue to protect the rights enshrined under Article 9 exactly as they are now – in which case, what would be the point in changing it at all?