Under Article 9 of the HRA, how can we reconcile free speech and freedom of religion?

The Human Rights Act of 1998 is vastly known for its liberal values of promoting freedom of expression, thought and religion in the hopes of fostering a free and cohesive mixed society in the United Kingdom and to continually uphold its democratic ethos. Not only is the UK diverse in its eclectic mix of race but also in that of religion. Perhaps much of this cohesiveness can be attributed to Article 9 of the Human Rights Act, which entitles individuals in the UK to religious freedom and expression. It states the following:

Freedom of thought, conscience and religion

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.  

The HRA has accounted for the right to freedom of thought and religion and accommodates a range of mediums for religious expression,  from orally, artistically or literal (in the form of religious dress and practice) means. It also may provide “absolute” and complete freedom within the law. However, to what degree has society itself limited its own free speech in regards to religion? If there are limits on this freedom, how free really is ‘free speech’? Moreover, does secularism, in its attempt ensure uniformity and equality, in fact hinder religious expression?

It is important to acknowledge that while religious freedom is granted under the law, there must be some mechanism for societal norms and how religious expressions (or lack of) may effect other citizens of the UK. A common issue is the right to manifest religious beliefs in choice of clothing in professional institutions such as schools, universities or work places as part of a dress code. We can see that institutions not affiliated with any government or religious institutions attempt to mimic secular organisational culture, whereby all individuals are equal and there is no work culture government by religion. Should this mean that in order to further integrate society, religious manifestation should be discouraged, such as wearing of the hijab or the turban?

The essence of the HRA is far from simple in that it does not mean what is simply stated, but its applies differently depending on the situation. For example, where everyone is equal in the eyes of law in the UK regardless of religion, there are provisions for sikhs that exempt them from the necessity to wear helmets when riding motorcycles since many wear turbans. While this law is accommodating, it defeats the purpose of secularism in British society in “theory,” and but also creates a contradiction where we speculate in which cases religious manifestation trumps the order of the law, and vice versa. The crucial issue we are facing is being able to draw the line between religious imposition and fundamentalism versus simple religious manifestation. Expressing our religion by means of dress or actions is granted under Article 9 of the HRA, however there is no account for the expression of non religious and humanist ideas under Article 9 and whether criticism of religious ideology is justified as free speech. Criticism of religion in the form of satire, debate and literature should also be regarded as free speech if the arguments of  religious groups expressing their religion under Article 9 call it free speech. This is a considerable debate that Article 9 of the HRA promulgates.

Davender Ghai, Credit: Reuters

A famous case involving this debate is the Ghai case, where an Orthodox hindu requests an open funeral pyre in public space for his cremation at his own funeral. This case was taken into great consideration to account for both the allowance of one’s religious beliefs and sensitivity of individuals who do not share the same faith. What the HRA has done here is give an individual such as Mr. Ghai the full right under the law to practice his religion, but more importantly question the law when he is not allowed to do so. This is an important and core principle of our democratic platform. However, it is difficult to say that the HRA  in fact increases free speech due to greater debate as to whether there should be limits on free speech. Moreover, the implementation of Article 9 raises the crucial question as to how free speech should be when expressing secularist and religious opinion, when free manifestation of religion crosses the boundaries to radicalisation and when secularist and humanist views turn to gratuitous insult. The boundaries within which legal pluralism operates should be the same as religious expression under this act. What the act has done though is perhaps further constrict free speech in regards to religion due to the ignorance of what constitutes freedom and whether this includes harsh criticism and insult.

To conclude, the HRA is an important act to keep intact as a foundation for basic human rights in the UK. Specifically, Article 9 of the HRA has had a significant impact on the revaluation of the role of free speech, and more importantly the meaning of free speech. The primary character of democracy seems to come into question when we begin to debate whether limits on free speech should be imposed and how to protect the sanctity and peace of society should there not be any limits.

Anushka Sikka, Staff Writer







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