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Last Rites and Human Rights: Funeral Pyres and Religious Freedom in the United Kingdom

Published online by Cambridge University Press:  30 April 2010

Peter Cumper  and
Tom Lewis
Peter Cumper
Affiliation:
University of Leicester
Tom Lewis
Affiliation:
Nottingham Trent University
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Abstract

This article considers the litigation in Ghai v Newcastle City Council in which the legality of open air funeral pyres under the Cremation Act 1902, and under the right to freedom of religion and belief in article 9 of the European Convention on Human Rights, was considered. Ultimately the Court of Appeal held that open air funeral pyres within a walled enclosure were not unlawful. But at first instance the Administrative Court, which had assumed that domestic law prohibited such pyres, held that such a ban would not breach article 9 since it was legitimate to prevent causing offence to the majority of the population. It is the approach of the Administrative Court to article 9 (which was not considered by the Court of Appeal) that forms the basis of the critical analysis in this article. In particular it is argued that the Administrative Court undervalued the right to freedom of religion and belief, as against the need to prevent offence to others, and adopted a stance which was overly deferential to Government and Parliament.1

Type
Articles
Information
Ecclesiastical Law Journal , Volume 12 , Issue 2 , May 2010 , pp. 131 - 151
Copyright
Copyright © Ecclesiastical Law Society 2010

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References

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20 R (Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin and another intervening) [2009] EWHC 978 (Admin); [2009] WLR (D) 151.

21 R (Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin and another intervening) [2010] EWCA Civ 59.

22 Ibid at [8].

23 The Cremation Act 1902, s 2. Section 4 enables local authorities to establish crematoria and section 5 regulates their location in relation to dwellings and public highways and consecrated ground.

24 Ibid, s 7.

25 Ibid, s 8.

26 See SI 2008, No 2841, reg 13.

27 See Ghai, note 21 above, at [3] (Lord Neuberger MR). Moore-Bick LJ and Etherton LJ agreed, giving no separate judgments.

28 Ibid at [35] (Lord Neuberger MR).

29 Ibid at [40] (Lord Neuberger MR).

30 See Ghai, note 20 above, at [83]. On Cranston J's reasoning see also [79–85]. The Administrative Court operated on the understanding that the requirement be that cremation take place fully in the open, ie not within any structure (see Ghai, note 20 at [8–9]); and that ‘building’ meant a ‘structure with roof and walls’ (see Ghai, note 20 at [82]). The possibility of compromise, a walled enclosure open to the sun, seems not to have been explored at first instance. The Court of Appeal noted that this was not surprising given the content of the pre-action correspondence (see Ghai, note 21 at [2]).

31 Article 9 of the ECHR provides that:

(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, 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.

It was also claimed that the ban breached articles 8 (the right to respect for a private life) and 14 (the principle of non-discrimination) of the ECHR.

32 Kokkinakis v Greece (1993) 17 EHRR 397 at [31].

33 See Handyside v UK (1981) 4 EHRR 149 at [49].

34 R (on the application of Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246.

35 See Ghai, note 20 above, at [86].

36 Ibid at [101].

37 Ibid at [87].

38 In regard to open air cremation, a great deal of conflicting expert evidence was adduced by both sides in relation to Hindu funerary beliefs and customs. See Ghai, note 20 above at [21–45].

39 See Williamson, at [23] (Lord Nicholls), cited at [88] in Ghai.

40 Ghai, note 20 above, at [16].

41 Ibid at [102].

42 Ibid at [61] and [105].

43 Ibid.

44 Huang v Secretary of State for the Home Department [2007] 2 WLR 581 at [19] (Lord Bingham).

45 Ghai, note 20 above, at [121].

46 Ibid at [122].

47 Ibid at [123]. There was also found to be no breach of article 8 of the ECHR due, inter alia, to the ‘public character’ of open air cremation [138] and the fact that such cremations were not so fundamental to the lives of Hindus and Sikhs in the UK as to form part of their identity [139]. Similarly, article 14 of the ECHR was not engaged because there was an ‘objective and reasonable justification’ for the difference in treatment with regard to UK rules governing funeral rites [147–151].

48 Ibid at [161].

49 Ibid at [116].

50 Ibid at [8].

51 Ibid at [117]. On Hindu attitudes to death generally see Laungani, P, ‘Death Among Hindus in India and England’, (1999) International Journal of Group Tensions, 28(1–2), pp 85–114CrossRefGoogle Scholar; and Firth, S, Dying, Death and Bereavement in a British Hindu Community (Leuven, 1997)Google Scholar.

52 For example, when a Jehovah's Witness refused to attend a parade in her school commemorating war with Italy, the European Court was unable to discern anything ‘either in the purpose of the parade or in the arrangements for it, which could offend the applicant's pacifist convictions’: Valsamis v Greece, (1997) 24 EHRR 294 at [32], (18 December 1996).

53 In X v Austria, Application No 1753/63, 8 European Yearbook 174, the Commission denied a prisoner access to a prayer chain on the ground that it was not ‘an indispensable element in the proper exercise of the Buddhist religion’.

54 It is important to note that in recent years the European Court has tended to move away from this approach, and in Hasan and Chaush v Bulgaria (2000) 10 BHRC 846 at [78], (26 October 2000), it held that article 9 of the Convention ‘excludes any discretion on the part of the State to determine whether religious beliefs … are legitimate’.

55 See Arrowsmith v UK, Application No 7050/75, 19 DR 5, 19.

56 For example, see United States v Kuch, 288 F Supp 439 (DDC 1968), where the Defendant, having been charged with a number of drugs offences, argued unsuccessfully that her arrest violated the free exercise of her (alleged) religion, central tenets of which included venerating a three-eyed toad and singing the supposedly ‘holy’ songs, ‘Puff, the Magic Dragon’ and ‘Row, Row, Row Your Boat’.

57 Ghai, note 20 above, at [100].

58 Ibid at [118].

59 Ibid.

60 Cremation Regulations, Consolidation and Modernisation, CP 11/07, 16 July 2007, available at <http://webarchive.nationalarchives.gov.uk/ + /http://www.justice.gov.uk/docs/cp1107.pdf> (accessed 4 January 2010).

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62 For example, the 2001 census for England and Wales illustrates, graphically, the religiously diverse nature of the UK today. See <http://www.statistics.gov.uk/census2001/profiles/commentaries/ethnicity.asp> (accessed 4 January 2010).

63 For example see, Garces-Foley, K (ed), Death and Religion in a Changing World (New York, 2005)Google Scholar; Kellehear, A, Howarth, G and Charmaz, K (eds) The Unknown Country: death in Australia, Britain and the USA (Basingstoke, 1997)Google Scholar; Jupp, P, Gittings, C (eds) Death in England. an illustrated history (Manchester, 1999)Google Scholar; and Davies, DJ, A Brief History of Death (Oxford, 2004)Google Scholar.

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65 Cremation Regulations, Consolidation and Modernisation, CP 11/07, 16 July 2007, available at <http://webarchive.nationalarchives.gov.uk/ + /http://www.justice.gov.uk/docs/cp1107.pdf> (accessed 4 January 2010).

66 Ghai, note 20 above, at [119]. Some support for this argument may be found in the dicta of Lord Hoffmann in R (Begum) v Headteacher and Governors of Denbigh High School [2005] 2 All ER 396 at [64].

67 See Curl, JS, The Victorian Celebration of Death (Stroud, 2000) p 179Google Scholar; and Quigley, C, The Corpse: a history (North Carolina, 1963) p 102Google Scholar.

68 For example, the change in the Catholic approach has been summarised as follows: ‘Since 1963 the Church has given permission for Catholics to be cremated. Prior to this cremation was seen to be anti-Christian in intention’. See The Guidance Note on the Burial of Ashes, to the Bishops conference of England and Wales, Department for Christian Life and Worship (2008), available at <http://www.liturgyoffice.org.uk/Resources/OCF/Ashes.pdf> (accessed 4 January 2010).

69 See, for example, Şahin v Turkey (2007) 44 EHRR 5 at [109]; Otto Preminger Institute v Austria (1994) 19 EHRR 34 at [50]; and Murphy v Ireland (2004) 38 EHRR 13 at [67]. This justification proffered by the Strasbourg Court has been subjected to criticism. See eg, T Lewis ‘What not to wear: religious rights, the European Court, and the margin of appreciation’, (2007) 56 ICLQ, 395.

70 See, generally, Masterman, R, ‘Section 2(1) of the Human Rights Act 1998: binding domestic courts to Strasbourg?’, [2004] Public Law 725Google Scholar; R Masterman, ‘Taking the Strasbourg jurisprudence into account: developing a municipal law of human rights under the Human Rights Act’, [2005] ICLQ 907; and S Foster, ‘The protection of human rights in domestic law: learning lessons from the European Court’, [2002] NILQ 232.

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79 The film could only be watched at the applicant's ‘art house’ cinema (which had a narrow specialist clientele), on payment of a fee by those who were over 17 years of age.

80 Otto Preminger, note 78 above, at [53–54].

81 Ghai, note 20 above, at [120].

82 Ibid.

83 Feinberg, note 75 above, at pp 33–34.

84 Otto Preminger, note 78 above, at [49]. For a critique of the European Court's ruling in Otto Preminger see D Pannick, ‘Religious feelings and the European Court’, [1995] Public Law 7.

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88 Ghai, note 20 above, at [8–9].

89 Ibid at [100].

90 See Giniewski v France, Application No 64016/0031, 31 January 2006 (HUDOC) and Klein v Slovakia, Application No 72208/01, 31 October 2006 (HUDOC). Moreover, Professor Luzius Wildhaber, former President of the European Court of Human Rights, speaking extrajudicially (at the University of Leicester, 18 March 2009) has suggested that the European Court would probably decide Otto Preminger differently today.

91 For example, see İA v Turkey, No 42571/98, ECHR 2005-VIII [29], where the deferential approach of the European Court to religious sensibilities can be contrasted with its less deferential approach in Giniewski v France and Klein v Slovakia (ibid).

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94 Ghai, note 20 above, at [121–3].

95 The primary means by which this dialogue may take place being s 3 and s 4. See eg, Hansard, HC Vol 314, col 1141 (June 24, 1998) (Jack Straw MP, Home Secretary); Hickman, T, ‘Constitutional dialogue, constitutional theories and the Human Rights Act 1998’, [2005] Public Law 306Google Scholar; Clayton, R, ‘Judicial deference and ‘democratic dialogue’: the legitimacy of judicial intervention under the Human Rights Act 1998’, [2004] Public Law 33Google Scholar.

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97 Ibid, at [22–23].

98 Ibid, at [93].

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105 Ibid at 255–256 (emphasis added).

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