First of all, some legal bits.
European Convention on Human Rights (ECHR) Article 9 and 14
Convention for the Protection of Human Rights and Fundamental Freedoms
Article 9
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 limitation 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.
Article 14 - Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
(Obtained from: http://www.minorityrights.org/Legal/religion/european/coe/legal_rel_eu_coe_ECHR914.htm)
Human Rights Act
Article 10: Freedom of Expression
(1) Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11: Freedom of Assembly
(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
Within the EU, these are just some of the basic Civil Rights intended to give the individual some level of freedom from potentially overbearing ruling bodies.
However, as is immediately clear, these are not always recognized by those bodies when not convenient – member countries are permitted a ‘margin of appreciation’, giving them a degree of discretion in deciding ‘what law is appropriate where there is insufficient common accord amongst Member States for the European Court of Human Rights itself to give a definitive ruling. The extent of the margin of appreciation in any given case is not fixed, and is affected by the changing social and legal climate within the Member States.’ [Wikipedia]
Notably, in the high-security atmosphere of the UK today, the Anti-terrorism, Crime and Security Act 2001 and the Prevention of Terrorism Act 2005 have raised questions on how far basic Human Rights can be ignored, and for how long (such as with regard to detention). These Acts specify that a judge must balance the rights of an individual against the interests of society, and also whether the limits placed on an individual’s freedom are proportionate to the reasons for those limits. Fortunately, the Human Rights Act 1998 incorporates the majority of European Convention legislation directly into UK law, thus allowing for greater individual representation than in other EU countries.
One key example of the need for individual freedoms – in February 2005, Parliament's Joint Committee on Human Rights questioned the compatibility of the Government’s proposed Identity Card Bill with Article 8 of the European Convention on Human Rights (the right to respect for private life) and Article 14 (the right to non-discrimination), both of which are encapsulated with the UK's own Human Rights Act. As we know, battles over this legislation continue.
Religious Expression and Civil Rights
In terms of Paganism generally, there have been very few specific legal cases on which to base a precedent, and none in the UK so far (the nearest being freedom to wear religious jewellery/images). Relevant legislation would be the Racial and Religious Hatred Act 2006, which creates an offence of inciting (or 'stirring up') hatred against a person on the grounds of their religion. This was originally intended to be part of anti-terrorist legislation, but was dropped on two occasions after objections from the House of Lords. It has now received Royal Assent and will commence in law via Statutory Instrument soon.
At the last general election, the Labour Party confirmed that, were it to be re-elected, it would bring in a Bill to outlaw incitement to religious hatred: "It remains our firm intention to give people of all faiths the same protection against incitement to hatred on the basis of their religion. We will legislate to outlaw it and will continue the dialogue we have started with faith groups from all backgrounds about how best to balance protection, tolerance and free speech" (Labour Party manifesto, 'Forward not back' (2005), p111-112).
The bill contains wording to amend the Public Order Act 1986:
Section 29A
Meaning of "religious hatred"
In this Part "religious hatred" means hatred against a group of persons defined by reference to religious belief or lack of religious belief.
Section 29B:
(1) A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.
Following objections that this would make certain parts of key religious texts illegal (including the Bible), and also various comedians publicly querying the issue of religious satire, thus going against the Human Rights Act, the House of Lords passed amendments to the Bill on 25 October 2005 which limited the legislation to ‘A person who uses threatening words or behaviour, or displays any written material which is threatening ... if he intends thereby to stir up religious hatred’. This removed the abusive and insulting concept, and required the intention - and not just the possibility - of stirring up religious hatred.
Interestingly, blasphemy and blasphemous libel are still indictable offences, but apply only to attacks on the Church of England/Christianity. Although no blasphemy case has been prosecuted in England and Wales since the passage of the Human Rights Act, it is likely that any prosecution for blasphemy today is likely to fail on grounds either of discrimination or denial of the right to freedom of expression.
Also of note, indecency denoted material ‘offensive to public susceptibilities’. No easy definition of this exists, but in the past it generally refers to material of a sexual nature. The courts have said that this is something that ‘offends against the modesty of the average man, offending against recognised standards of propriety at the lower end of the scale’. Posters for causes such as animal rights, which are deliberately intended to shock their audience, have sometimes had to contend with indecency prosecutions. [Information from Wikipedia and Amnesty International]
Therefore, if any legal queries were raised about a Pagan gathering, whether private or public, the above questions should be sufficient to quell any anxieties. Publicly, the main issue would be trespass (although presumably this would have been anticipated!) or indecency (likewise!). As current legislation specifically focuses more on preventing terrorism, freedom to practice religion is a hot topic and one that officers should be aware of. Search warrants must still be obtained for private premises where a crime is believed to have been/is being committed – it is unlikely that Pagan practice would be taken as incitement to terrorism, which is the only current exemption.
This piece was put together by Greycat in March 2007 and has been edited using others' contributions.
If you have any contributions, please let us know.
