See discussions, stats, and author profiles for this publication at: http://www.researchgate.net/publication/233970446Religious Minorities and Human Rights:Bridging International and DomesticPerspectives on the Rights of PersonsBelonging to Religious Minorities underEnglish LawARTICLE JANUARY 2010DOI: 10.1163/22116117-90000180DOWNLOADS195VIEWS591 AUTHOR:Nazila GhaneaUniversity of Oxford23 PUBLICATIONS 10 CITATIONS SEE PROFILEAvailable from: Nazila GhaneaRetrieved on: 09 August 2015 Nazila Ghanea Religious Minorities and Human Rights: BridgingInternationalandDomesticPerspectivesontheRightsof Persons Belonging to Religious Minorities under English law1 I.ABSTRACT ThispaperconsidersminoritiesinEnglishlawthroughtheprismofinternationalstandards relatedtobothfreedomofreligionorbelief,andminorityrights.Thesetwosetsof internationalnormativestandardsarebroughttogetherinordertoemphasizethefactthat personsbelongingtoreligiousminoritieshaveaccessnotonlytogeneralhumanrights standards including freedom of religion or belief, but also to minority rights. Combining the implicationsoftheseapplicablerights,thepaperwillsuggestthatreligiousminorities should be (A) taken to include persons belonging to minorities on grounds of both religion or belief;(B)thattheirreligiouspracticeshouldnotonlybeconsideredmanifestationof religion or belief but also the practice of a minority culture; and that (C) states have a duty to protectthesurvivalandcontinueddevelopmentoftheidentityofreligiousminoritiesand allowsuchpersonstoenjoytheirculture.Thepaperwillthenmovetoconsideringafew recent cases in English law, in order to examine the extent to which these three implications are realized within them.II.RELIGIOUS MINORITIES IN INTERNATIONAL PERSPECTIVE Internationalhumanrightsinstruments2affordpersonsbelongingtoreligiousminorities protectionswithinfreedomofreligionorbelief3provisions.Theseprovisionsrelatetothe

University Lecturer in International Human Rights Law, University of Oxford. 1 The research for this piece has been undertaken with financial support from the Economic and Social Research Council and the Arts and Humanities Research Council to a project (AH/H016074/1) within the Religion and Society research programme, on "Religion and Belief, Discrimination and Equality in England and Wales: Theory, Policy and Practice (2000-2010)", and in which the author is a Co-Investigator. Further details of the project can be found at http://www.derby.ac.uk/religion-and-society 2InternationalinstrumentsistakeninthispapertoexcluderegionalinstrumentsandapplyonlytoUnited Nations (UN) standards. 3Art. 18 of the Universal Declaration of Human Rights(UDHR) and Art. 18 of the International Covenant on CivilandPoliticalRights(CCPR)refertofreedomofthought,conscienceandreligion.InitsGeneral having or manifesting of religion or belief. Manifesting religion or belief is protected whether individually or in community with others, and in public or private, though subject to possible limitations. Its protection in association with others clearly suggests the possible existence of other members with whom one would want to worship, observe, practice or teach.Articles 18 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (CCPR) uphold this right as follows: Article 18 of the UDHR states: 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 teaching, practice, worship and observance.4 Article 18 of the CCPR states: 1.Everyoneshallhavetherighttofreedomofthought,conscienceandreligion. Thisrightshallincludefreedomtohaveortoadoptareligionorbeliefofhis choice,andfreedom,eitherindividuallyorincommunitywithothersandin publicorprivate,tomanifesthisreligionorbeliefinworship,observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3.Freedomtomanifestonesreligionorbeliefsmaybesubjectonlytosuch limitationsasareprescribedbylawandarenecessarytoprotectpublicsafety, order, health, or morals or the fundamental rights and freedoms of others.4.TheStatesPartiestothepresentCovenantundertaketohaverespectforthe libertyofparentsand,whenapplicable,legalguardianstoensurethereligious and moral education of their children in conformity with their own convictions.5

Comment 22, the Human Rights Committee explains that this freedom includes the freedom to hold beliefs henceitsabbreviationtoreligionorbelief.SeealsoNazilaGhanea,FreedomofReligionandBelief,in RhonaK.M.SmithandChristienvandenAnker(eds.),TheEssentialsofHumanRights(HodderArnold, London, 2005), 309-312. 4 See Art. 18 UDHR. 5 See Art. 18 CCPR. Fromthesetwoarticlesitisclearthatmanifestingreligionincommunitywithothers, includingthepossibilityofdoingsoinpublic,mayoverlapwithrelevantminorityrights provisions. Furthermore, even the more individualistic aspect of the rightto have, to adopt or change religion or beliefrarely addresses a purely individual encounter with a belief but presupposeslikelyotherswithwhomonehasinteractedinordertobeconvincedofa particularreligiousorotherbelief.Theindicativemanifestationstoooftenentailcollective aspects:teachingnecessarilyinvolvesothers,andpractice,worshipandobservanceare often enjoyed along with others. One may therefore consider freedom of religion or belief (as upheld in international human rights instruments) as an individual right that more often than notpresupposestheexistenceofcollectivegroupswithwhomthisfreedomisenjoyedand fulfilled. The right is not dependent on group enjoyment but often relies on the existences of others sharing that enjoyment to fully fulfil it. The 1981 UN Declaration on the Elimination of Intolerance and Discrimination on the Basis ofReligionorBelief6(ReligiousDiscriminationDeclaration)offersanon-exhaustivelistof thescopeoffreedomofthought,conscience,religionorbelief.Alltheprovisionsofits Article 6 are related to the collective aspects of this freedom: in assembling for worship and maintaining places of worship (Art. 6(a)), establishing and maintaining charitable institutions (Art. 6(b)), acquiring and using articles required for customs and rites (Art. 6(c)), publishing anddistributionofpublications(Art.6(d)),teachingreligionorbelief(Art.6(e)),receiptof financialandothercontributions(Art.6(f)),trainingofleadersandcallingintobeingthe leadershipofthereligionorbelief(Art.6(g)),celebratingholidaysandceremonies(Art. 6(h)),andcommunicationregardingreligionorbeliefwithindividualsandinstitutions,at nationalorinternationallevels(Art.6(i)).Nevertheless,thereisnoexplicitreferenceto collective aspects of freedom of religion or belief or indeed to persons belonging to religious minorities.Freedomofreligionorbeliefstandardsaloneappeartogonofurtherthan passivelytracingthepossibilityofcollectivemanifestationofthisfreedom,andtheir protection of the collective aspects of this right is far from explicit.So fundamental is freedom of religion or belief that it cannot be derogated from even in time ofpublicemergency,whilefreedomofexpression,freedomofassociationandminority rightscan.Freedomofreligionandbeliefisfar-reachingandprofound;itencompasses freedomofthoughtonallmatters,personalconvictionandthecommitmenttoreligionor

6 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN Doc A/RES/36/55, 1981. belief,whethermanifestedindividuallyorincommunitywithothers.7Itincludestheistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.8 It should not be restricted to traditional religions alone9 nor to official ones alone10. The profound and non-derogable nature of freedom of religion or belief notwithstanding, it is notafreedomwithoutpossiblelimitations.Whilsthavingoradoptingareligionorbelief shouldnotbesubjecttocoercion,manifestingreligionorbeliefmaybesubjecttosuch limitation as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.11 These two aspects are referred to astheforuminternum,enjoymentofwhichisabsolute,andtheforumexternum,enjoyment ofwhichmaybesubjecttolimitation.Althoughhaving,adoptingorchangingreligionor belief is not legally subject to limitation, extensive limitations even on manifestation can put such pressure on individuals, and communities of religion or belief, that the having, adopting or changing of a religion or belief itself is actually limited. That is, limitations themselves can arguably amount to the threshold of the prohibited coercion. Coercion has been described by the Human Rights Committee (HRC) as that which[] would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers toadheretotheirreligiousbeliefsandcongregations,torecanttheirreligionor beliefortoconvert.Policiesorpracticeshavingthesameeffect,suchas,for example, those restricting access to education, medical care, employment or [] otherprovisionsoftheCovenantaresimilarlyinconsistentwitharticle18.3 [regarding non-coercion].12 Ontheotherhand,ifthereisanenvironmentconducivetomanifestationofreligionsand beliefs,thereismorelikelihoodofindividualsbeinginformedaboutthevarietyof communitiesandtheirbeliefsandthereforeofpossiblychangingreligionorbelieftojoin them.

7 CCPR, General Comment 22: 30/07/93 on CCPR Art. 18, para. 1, The right to freedom of thought, conscience and religion. 8 Ibid., para. 2. 9 Ibid., para. 2. 10 Ibid., paras. 9-10. 11 CCPR, op.cit. note 2, Art. 18, para. 3. 12 General Comment 22, op.cit. note 6, para. 5. III. PERSONS BELONGING TO RELIGIOUS MINORITIES IN INTERNATIONAL PERSPECTIVE Movingthentominorityrightsstandards,thesearestandardsconcernedwiththeprotection of collective aspects of individual rights. The extent to which they additionally protect group rights per se, rather than the existence of a group so that individual rights holders may benefit fromgroupprotection,remainsamatterofmuchcontention.Neverthelesstheircollective aspect13isbeyonddisputeanditistothismeaningthatwewillrestrictourselvesinthis paper.Furthermore,sinceweareaddressingindividualcasesbelow,theexaminationwill concernitselfonlywithanarrowunderstandingoftherightsofpersonsbelongingto minorities and not minorities as such. Whilst there is no agreeddefinition of minority in international legal provisions, reference tominoritiesisroutinelyprefacedbythedesignationsethnic,religiousorlinguistic. Personsbelongingtoreligiousminorities,asweshallsee,havealwaysrhetoricallybeen central to the regime for minorities. In 1976 the CCPR came into force. Its Article 27 holds that: InthoseStatesinwhichethnic,religiousorlinguisticminoritiesexist,persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.14 It wasFrancesco Capotortis 1977 UN Sub-Commission study thatreinvigorateda return to thenotionofminorities.Capatorti,whowasaUNSub-Commissionexpert,heldthata minority is: Agroup,numericallyinferiortotherestofthepopulationofaState,inanon-dominantposition,whosemembersbeingnationalsoftheStatepossess ethnic, religious or linguistic characteristics differing from those of the rest of the

13CollectiveaspectreferstothatwhichisupheldinArt.27oftheCCPR,namely,arightofpersons belonging to minorities to maintain and continue their culture, language and religion. 14 CCPR, op.cit. note 2, Art. 27. populationandshow,ifonlyimplicitly,asenseofsolidarity,directedtowards preserving their culture, traditions, religion or language.15 TheHRCtooksomeyearstoreflectArticle27withinitsjurisprudencebutiteventually started referring to it in individual communications and in its 1994 General Comment 23 on Article27oftheCCPR.Therationaleforminorityrightsisthatmembersbelongingto minorities do not have the same opportunity to enjoy their own culture, religion and language as persons belonging to majorities, hence special attention to their rights is required. IV. THE RIGHTS OF PERSONS BELONGING TO RELIGIOUS MINORITIES? KeyprovisionsoftheinternationalsystemofprotectionofminoritiesincludeArticle27of the CCPR; General Comment 23 of the HRC on Article 27; and the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities(UN Decl.Min.).Fromthesesourcesitisclearthatminorityrightsprovisionsallow,whetherin hard or soft law, for the practices of religious minorities to be protected under culture.Article 27 holds that persons belonging to (religious) minorities shall not be denied the right, incommunitywiththeothermembersoftheirgroup,toenjoytheirownculture,toprofess andpractisetheirownreligion,ortousetheirownlanguage.Whilstprofessingand practisingtheirownreligionwouldappeartobethemostappropriateoftheenjoyments accruing to religious minorities, some religious communities may worship in a language that differsfromthatofthemajoritycommunity.Furthermoretheumbrellatermcultureisan apt description of their literature, symbols, cumulative manifestation and practise of relevant rites,customs,observancesforexampleholidays,dietarycodes,fasting,pilgrimage, worshipandaseparatecalendaragainespeciallywhenthesedifferfromthoseofwider society and more particularly of a dominant majority.ThelanguageofArticle27echoesthatofArticle18oftheCCPR.However,theformer protectstherightofpersonsbelongingtoreligiousminoritiestohavetheirculturalrights andtheprofessionandpractiseoftheirreligionprotectedincommunitywiththeother membersoftheirgroup;whereasthelatterprotectsonlymanifestationeitherindividually orincommunitywithothers,andinpublicorprivate[]inworship,observance,practice

15HRC,FrancescoCapotorti,StudyontheRightsofPersonsbelongingtoEthnic,ReligiousandLinguistic Minorities, E/CN.4/Sub.2/384/Add.1-7, 1977. and teachingthough the implications of this are to be broadly construed and not restricted to official or traditional religions.16 It is to include:[] not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, andthe use of a particular language customarily spoken bya group.In addition, the practise and teaching ofreligion orbeliefincludesactsintegraltotheconductbyreligiousgroupsoftheirbasic affairs, such as the freedom to choose their religious leaders, priests and teachers, thefreedomtoestablishseminariesorreligiousschoolsandthefreedomto prepare and distribute religious texts or publications.17 The scope of the collective aspect of minority rights is more widely drawn than that outlined more specifically within freedom of religion or belief. Minorityrightsaretobeenjoyedbypersonswhobelongtoagroupandwhosharein commonaculture,areligionand/oralanguage.18Therearenootherconditionsonthe enjoymentoftheserights,notevencitizenshiporpermanentresidencyasrequiredbysome definitions of minority, including Capotortis definition above. The HRC has clarified that these rights are to be enjoyed equally by migrant workers or even visitors.19 Minorityrightsarecontingentontheabilityoftheminoritygrouptomaintainitsculture, language or religion.20 The HRC draws from this that:Accordingly,positivemeasuresbyStatesmayalsobenecessarytoprotectthe identityofaminorityandtherightsofitsmemberstoenjoyanddeveloptheir cultureandlanguageandtopractisetheirreligion,incommunitywiththeother membersofthegroup[][A]slongasthosemeasuresareaimedatcorrecting conditions which prevent or impair the enjoyment of the rights guaranteed under article27,theymayconstitutealegitimatedifferentiationundertheCovenant, provided that they are based on reasonable and objective criteria.21

16 General Comment 22, op.cit. note 6, paras. 9 and 10. 17 Ibid., para. 4. 18 CCPR, General Comment 23: 08/04/94 on CCPR Art. 27. General Comment No. 23: The rights of minorities (Art. 27), para. 5(1). 19 Ibid., para. 5(2). 20 Ibid., para. 6(2). 21 Ibid., para. 6(2). Whilst cautious that such positive measures should be reasonableand objectivelybased, the HRCisapplyingthepossibleneedforpositivemeasurestoreligiousminorities.The relevanceofpositivemeasureswithregardstoreligionorbeliefisnotfoundinanyofthe freedom of religion or belief instruments. In this regard, therefore, minority rights extend the protection of religious minorities.TheHRCalsocommentsthattheenjoymentofculturalrightsmayrequirepositivelegal measuresofprotectionandmeasurestoensuretheeffectiveparticipationofmembersof minoritycommunitiesindecisionswhichaffectthem.22Therelevanceofculturalrightsto freedomofreligionorbeliefwasoutlinedabove.Hereagain,minorityrightsextendsthe protectionofreligiousminorities,asnoinstrumentsconcernedwithfreedomofreligionor beliefdelineatetheneedfortheeffectiveparticipationofmembersindecisionsaffecting them.Logicallythiswouldatleastincludetheareasoutlinedregardingmanifestationworship, observance, practice and teaching.TheUNDecl.Min.furthercallsfortheirfullparticipationintheeconomicprogressand developmentoftheircountry,dueregardforthelegitimateinterestsofpersonsbelonging tominoritiesandstatecooperationonquestionsthatrelatetotheminordertopromote mutual understanding and confidence, as well as advance respect for their rights.23 There is no parallel requirement reflected in the Religious Discrimination Declaration.Theobjectiveofminorityrightsisdirectedtowardsensuringthesurvivalandcontinued developmentofthecultural,religiousandsocialidentityoftheminoritiesconcerned,thus enriching the fabric of society as a whole [] States parties, therefore, have an obligation to ensurethattheexerciseoftheserightsisfullyprotected.24Freedomofreligionorbelief standards themselves make no mention of being directed towards the survival and continued developmentofreligiousminorities,andarefarfromobservingthatthiswouldenrichthe fabric of society at large.Taking soft law instruments and interpretations of minority rights into account could enhance thecurrentunderstandingofthepotentialscopeofminorityrightsininternational jurisprudence.Itgoesfarbeyondtoleranceandnon-discriminationalonewhich,thisauthor

22 Ibid., para. 7. 23 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Decl. Min.), UN Doc A/RES/47/135, 1992, Arts. 4(5), 5-7.24 General Comment 23, op.cit. note 17, para. 9. agrees,areincreasinglyseenasanecessarybutinsufficientpolicyresponsetothemost pressing contemporary challenges to safeguarding the interests of minorities.25 V.PERSONSBELONGINGTORELIGIOUSORBELIEFMINORITIESANDFREEDOMOF RELIGION OR BELIEF: APPLICABLE RIGHTS Thispositivepurposiveapproachisunfortunatelynotcastastheobjectiveoffreedomof religion or belief in international standards. The preamble of the UN Decl. Min. considers the promotion and protection of the rights of persons belonging inter alia to religious minorities asanintegralpartofthedevelopmentofsocietyasawholeandasacontributiontothe strengtheningoffriendshipandcooperationamongpeoplesandStates.26Ensuringthe survivalandcontinueddevelopmentofreligiousidentityisnotexplicitlystressedanywhere in freedom of religion or belief instruments. Thescopeoffreedomofreligionorbeliefexplicitlyincludesbeliefwhethertheistic,non-theistic or atheisticwhereas the extension beyond religion to belief communities as well is not explicit in minority rights. Considering the lack of any agreed definition of minority in internationalhumanrightsinstruments,buttheexplicitclaritythatprotectionforreligion necessarily extends to belief, this paper will take the position that minority rights protection for religious minorities should also stretch to belief minorities. Bringingthesetwosetsofinternationalnormativestandardstogetherclarifiesthefactthat personsbelongingtoreligiousorbeliefminoritiesshouldhaveaccessnotonlytogeneral human rights standards and freedom of religion or belief, but also to minority rights. In order toensureconsistency,ithasbeenarguedthat(A)religiousminoritiesshouldbetakento includepersonsbelongingtominoritiesongroundsofbothreligionandbelief.Fromthe considerationofthestandardsitwasalsoconsideredthat(B)thereligiouspracticeofsuch religiousminoritiesshouldnotonlybeconsideredmanifestationofreligionorbeliefbut also the practice of a minority culture. Finally, from minority provisions it became clear that (C)statesmayneedtoadoptpositivelegalmeasurestoprotectthesurvivalandcontinued development of the identity of religious minorities, should ensure their effective participation

25MaleihaMalik,MinorityProtectionandHumanRights,inTomCampbell,KeithEwingandAdam Tomkins, (eds.), Sceptical Essays on Human Rights (Oxford University Press, Oxford, 2001), 288. 26 UN Decl. Min., op. cit. note 15, preambular para. 6. indecisionswhichaffectthem,havedueregardforthem,andallowsuchpersonstoenjoy their culture. VI. PERSONS BELONGING TO RELIGIOUS OR BELIEF MINORITIES IN ENGLISH LAW Let us now consider a few recent cases in English case law, to examine the extent to which it reflects these three observations. Such a survey is necessarily limited by the condensed nature ofthispaperandthereisnoclaimthatitprovidesanexhaustiveorfullyrepresentative analysis. The purpose of this article is to sketch out how the above three points are reflected inthatcaselaw,thatis:(A)theinclusionofpersonsbelongingtominoritiesongroundsof bothreligionorbelief;(B)theunderstandingthattheirreligious/beliefpracticeshouldnot onlybeconsideredmanifestationofreligionorbeliefbutalsothepracticeofaminority culture;and(C)recognitionofthestatesdutytoprotectthesurvivalandcontinued developmentoftheidentityofreligiousminoritiesandallowsuchpersonstoenjoytheir culture.The fact that the United Kingdom (UK) has not acceded to the first Optional Protocol to the CCPR,whichallowsforindividualcommunicationsclaimingviolationofCCPRrights, meansthatthisisprimarilyatheoreticalexerciseratherthatanavenuetowardspursuitof redressforreligiousminoritieswhomayfeeltheyhavehadtheirrightsviolatedinEnglish law. However, the UK government rationalizes not acceding to the first Optional Protocol to theCCPRonthegroundsthat:theserightsarealreadyenjoyedintheUK,theirpractical valuetocitizensisunclear,itwouldincuradditionalcoststothepublicfunds,andbecause thecommunicationsprocedurecannotproducelegalrulings.27Iftheserightsareinfact already enjoyed in the UK, the exercise of assessing cases in English law by the benchmark of international standards would substantiate such a claim, hence its value as an exercise. For reasons of brevity, this paper will not consider other relevant standards and mechanisms that apply in England.28 Furthermore, the analysis is pursued with due regard to the complexity of the different legal regimes that relate to persons belonging to religious or belief minorities at

27 The HRC has urged the United Kingdom to accede to the first Optional Protocol and to ensure that judges are informed about the provisions of the CCPR. See: CCPR/C/GBR/CO/6, Human Rights Committee, 93rd session, 30July2008,ConsiderationofreportssubmittedbyStatesParties,ConcludingObservationsoftheHuman Rights Committee, United Kingdom of Great Britain and Northern Ireland, para. 6. 28 The most pertinent of these includeArt. 9 of the European Convention on Human Rights as incorporated by the Human Rights Act 1999; the Employment Equality (Religion or Belief) Regulations 2003; the Religious and Racial Hatred Act 2006; and Part 2 of the Equality Act 2006 (in relation to discrimination on grounds of religion or belief); the Framework Convention on the Protection of National Minorities and thework of bodies such as the Equality and Human Rights Commission. the domestic level.29It will also not explore the question ofstanding in relation togroups.30 Without going into too much detail about who should be considered a person belonging to a minority in the English context, it will be suggested that a broad approach should be utilized which is not restricted by citizenship or minority status within the whole national territory,31 butshouldbeguidedbynumericalandothernon-dominantstatus,andtheholdingof differing characteristics for which there is internal solidarity to maintain. A.TheInclusionofPersonsBelongingtoMinoritiesonGroundsofbothReligionor Belief Regardingthefirstquestion,ofwhetherreligionandbeliefareequallyprotected,itisclear from the case law that they are. Grainger PLC v. Nicholson32 addressed the case of belief in man-madeclimatechange,theenvironmentandresultingmoralimperatives,andaccepted thisphilosophicalbeliefasbeingofasimilarcogency33orstatusasreligiousbelief,thus fallingwithinthepurviewoftheEmploymentEquality(ReligionorBelief)Regulations 2003.34 In doing so it cited other cases such as Williamson v. Secretary of State for Education and Employment35 and Eweida v. British Airways plc.36Williamson v. Secretary of State for Education and Employment explained that: Whenthegenuinenessofaclaimantsprofessedbeliefisanissueinthe proceedings the court will inquire into and decide this issue as a question of fact. Thisisalimitedinquiry.Thecourtisconcernedtoensureanassertionof religious belief is made in good faith [] But, emphatically, it is not for the court

29 For a discussion of relevant legal provision with respect to education, employment, immigration and asylum, planning,prisons,andhealthandsafetysee:SamanthaKnights,FreedomofReligion,MinoritiesandtheLaw (OxfordUniversityPress,Oxford,2007);MarkHill,ThePermissibleScopeofLegalLimitationsonthe Freedom of Religion or Belief in the United Kingdom, 19 Emory International Law Review (2005), 1129-1186. 30ForadiscussionseeAnaFilipaVrdoljak,AccesstoJusticeforMinorityGroups,Accessoallagiustizia dell'individuoneldirittointernazionaledell'UnioneEuropea,inF.Francioni,M.Gestri,N.Ronzitti,T. Scovazzi (Giuffr Editore, Milano, 2008), 115-148, at . 31HRC,Communications Nos. 359/1989 and 385/1989/Rev. 1,Ballantyne, Davidson, McIntyre v. Canada, 18 October 1990. 32 Grainger PLC v. Nicholson UKEAT/0219/09/ZT (2009). 33 This can be contrasted with Gnostic Centre, RE, ChComm, 16 December 2009, were the Charity Commission did not grant charity status to the Gnostic Centre on ground including the lack of evidence of shared morals or ethics among its followers. 34 See, for example, the case of Greater Manchester Police Authority v. Power, EAT 0434/09/DA, 12 November 2009,wherebeliefinspiritualismandthephilosophicalbeliefinlifeafterdeathandpsychicpowerswere deemed to fall within the Employment Equality (Religion or Belief) Regulations 2003. 35 Williamson v. Secretary of State for Education and Employment [2005] 2 AC 246. 36 Eweida v. British Airways plc [2009] ICR 303. toembarkonaninquiryinto theassertedbeliefandjudgeitsvaliditybysome objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion inquestion or the extent to which theclaimantsbeliefconformstoordiffersfromtheviewsofothersprofessing thesamereligion.Freedomofreligionprotectsthesubjectivebeliefofan individual. [][R]eligiousbeliefisintenselypersonalandcaneasilyvaryfrom oneindividualtoanother.Eachindividualisatlibertytoholdhisownreligious beliefs,howeverirrationalorinconsistenttheymayseemtosome,however surprising.[]Therelevanceofobjectivefactorssuchassourcematerialis,at most,thattheymaythrowlightonwhethertheprofessedbeliefisgenuinely held.37 Thisbroadinclusionofrecognitionforbeliefisevidentindifferentareasofthelaw, includingemploymentandwithincharitylaw.InconsideringwhethertheDruidNetwork could be registered as a charity for the charitable purpose of the advancement of religion for public benefit and no other purpose,38 the Board Members of the Charity Commission noted that the test of public benefit, for both a charity established for the advancement of religion and one for the promotion of moral or spiritual welfare or improvement for the benefit of the community,isthesame39andtheimperativethatorganisationsseekingregistrationas charities for the advancement of religion are not discriminated against on the basis that they mightbenewlyestablishedorrepresentreligiousminorities.40Theythenturnedtothe Campbell and Cosans test of what constitutes religion: [A] religion must be a sincere belief system of substance or significance, capable ofbenefitingsociety,havingacertainlevelofcogency,coherence,seriousness andimportance;asopposedtoaself-promotingorganisationsetuptopromote one or two persons, or a trivial system set up for, perhaps frivolous reasons.41 TheBoardfirstsatisfieditselfthattheDruidNetworkhadthevariouscharacteristicsofa religion42 before considering various principles of public benefit requirement, concluding that

37 Williamson v. Secretary of State for Education and Employment, op.cit. note 34, para. 22. 38 The Druid Network, RE ChComm, para. 11 (21 September 2010). 39 Ibid., para. 15. 40 Ibid., para. 16. 41 See Campbell and Cosans v. UK, 4 EHRR 293, at 304, para. 38 (1982). 42 The Druid Network, op.cit. note 37, para. 54. theDruidNetworkwasestablishedforexclusivelycharitablepurposesfortheadvancement of religion for the public benefit. Itshouldalsobenotedthatcogencyandcoherencedoesnotimplymeasuringabelief against some kind of objective standard; it may be personal and subjectively held. As argued in Eweida v. BA: [I]tisnotnecessaryforabelieftobesharedbyothersinorderforittobea religiousbelief,norneedaspecificbeliefbeamandatoryrequirementofan establishedreligionforittoqualifyasareligiousbelief.Apersoncould,for example, be part of themainstream Christian religion but hold additional beliefs whicharenotwidelysharedbyotherChristians,orindeedsharedatallby anyone.43 It would therefore appear clear that English law does accord equal protection to both religion and belief. In fact one should even draw attention to its upholding of freedom of belief within religion.InthecaseofGhaiv.NewcastleuponTyneCityCouncil,forexample,thejudge drawsattentiontothepossibilityofadiversityofpositionsamongHindusastowhat Hinduism requires with regards to bodily cremation: Whatweareconcernedwithinthiscaseis,ofcourse,whatMrGhaisbelief involveswhenitcomestocremation,anditmattersnotforpresentpurposes whether it is a universal, orthodox or unusual belief for a Hindu.44 B.Religious/Belief Practice not only as Manifestation of Religion or Belief but as Practice of a Minority Culture Thesecondquestioniswhetherthepracticeofreligionorbeliefminoritiesisgiven considerationasthepracticeofapersonbelongingtoaminoritycultureaswellasbeing considered as manifestation of religion or belief? In order to chart limitations that may be imposed on the manifestation and practice of religion or belief in English law we will use a schema to clarify the possibilities and particularly the implicationsforpersonsbelongingtominorities.AhdarandLeighexaminethequestionof manifestation, and its accommodation or otherwise, and identify the various legal approaches

43 Eweida v. BA, op.cit. note 35, para. 29. 44R(Ghai)v.NewcastleuponTyneCityCouncil(RamghariaGurdwara,Hitchinandothersintervening), EWCA Civ 59; WLR (D) 36, para. 19 (2010). employed.Tostartwith,thereneedstobeclarificationofwhetherproposedconductor practicesarepermitted,requiredorprohibited,bothbyreligionandthelaw.45Ofthenine possible outcomes, the following three then give rise to questions: [m]ost acute is where the lawrequireswhatthereligionprohibitsand,conversely,wherethelawprohibitswhat religionrequires[]Equally,whenapracticeispermittedbyareligionbutlegally prohibited [] it may be argued that religious liberty is diminished, although this is perhaps contentious.46AdharandLeighthenidentifyfivelimitingstrategiesonreligious manifestation which are important to consider in detail: 1.the beliefaction distinction, that states cannot regulate beliefs but they may regulate actions; 2.theself-regarding/other-regardingactiondistinction,whichdifferentiatesbetween actions that affect that person alone and those that harm others; 3.the religiously motivated/compelled distinction, that draws a line between actions that are required and those that are motivated or influenced by that religion or belief; 4.thecore/peripheralbeliefsandpracticesdistinction,wherethedistinctionisnot betweenrequired/motivatedbyreligionorbeliefbutbetweenwhatisconsidered central/intimatelylinked/unique/coretothatreligionorbeliefandwhatisconsidered peripheral or non-essential to it; and5.thereasonablelimitationapproach,thatrequiresthecarefulandrigorous consideration of three elements regarding government interest in limiting manifestationthe importanceofthelimitation,therelationshipbetweenthelimitationandtheunderlying purpose of the limitation and the impact that an exemption would for religious reasons would have on the purpose of the limitationand three elements with respect to the appellantthe natureandimportanceoftheirrighttofreedomofreligionorbelief,theimportanceofthe manifestation for that persons religion or belief, and the impact of the limitation on the right to practise that religion or belief.47 Theapplicationoftheselimitationstrategiesenablesustodrawoutthekeyimplicationsof each for persons belonging to minorities. 1.The BeliefAction Distinction

45RexAhdar and IanLeigh,Religious Freedomin theLiberal State(OxfordUniversity Press, Oxford, 2005), 156. 46 Ibid., 156. 47 Ibid., 160-173. ThisdistinctionisreflectedinthecaseofChondolv.LiverpoolCityCouncilwherethe EmploymentAppealTribunalheldthattheemploymenttribunalhadbeencorrecttodrawa distinctionbetweentheemployeesreligiousbeliefsontheonehandandinappropriate promotion of those beliefs on the other. Since the employer would have reacted in the same way irrespective of the view (religious or otherwise) that was being promoted, the employee had not been treated less favourably on grounds of his religion or belief: The distinction between, on the one hand, the Appellants religious belief as such and,ontheother,theinappropriatepromotionofthatbeliefisentirelyvalidin principle (though of course in any case in which such a distinction is relied on it will be necessary to be clear that it reflects the employers true reason).48 ItisalsoreferencedbyBaronessHaleofRichmondinWilliamsonv.SecretaryofStatefor Education and Employment: Respect [for beliefs] is one thing. Allowing them to be practised is another. I am preparedtoacceptthatthepracticeofcorporalpunishmentintheseschoolsisa manifestationoftheparentsandteachersbeliefs:abeliefthatasalastresort childrenmayneedphysicalcorrectionaspartoftheireducationcanonlybe manifested by correcting them in that way. I find it difficult to understand how a ban on that practice is anything other than a limitation of the right to manifest that belief:thebeliefinquestionisnotonlyabeliefthatparentsshouldbeableto punishtheirchildrenbutthatsuchpunishmentisanessentialpartofthesortof Christian education in which these parents and teachers believe.49 Inanothercontext,thefactthatbeliefscanlegitimatelybedeterminedwithinareligious communitywithoutinterferenceisdistinguishedfromthefactthatmanifestationresulting from this may nevertheless be limited: ItisacceptedonallsidesinthiscasethatitisentirelyamatterfortheChief Rabbi to adjudicate on the principles of Orthodox Judaism. But the sphere within whichthoseprinciplesarebeingappliedisthatofaneducationalestablishment whoseactivitiesareregulatedbythelawthatthecivilcourtsmustadminister. [] However distasteful or offensive this may appear to be to some, it is an issue

48 Chondol v. Liverpool City Council EAT/0298/08, para. 23 (2009). 49 Williamson v. Secretary of State for Education and Employment, op.cit. note 34, para. 78. in an area regulated by a statute that must be faced up to. It must be resolved by applyingthelawlaiddownbyParliamentaccordingtotheprinciplesthathave been developed by the civil courts.50 Itissuggestedthatthislimitationstrategycandisfavourminoritiesasitworksbestina relatively cohesive, homogenous society with a dominant religion [] [where] there is likely tobeahighdegreeofconsensusaboutwhichreligiouslyinspiredactionsaresocially acceptable [] and legally permitted.51 2.The Self-Regarding/Other-Regarding Action Distinction This distinction is often reflected in English law, for example in cases on religious clothing or symbols in state schools.InR (on the application of Playfoot) v. Governing Body of Millais School the uniform policy of the school, which did not accommodate the wearing of a purity ring,wasupheldinthejudgmentasservinganumberofimportantfunctionsincluding creating discipline, equality and cohesion, minimising differences of wealth and bullying, and healthandsafetyreasons.52IthasbeenarguedthatBritishcourtshavetakenavery restrictivestanceregardingtherighttowearcontroversialreligiousclothinginpublic[] [specifically] in particular establishments by citing the need to protect the rights of others and thepublicorder.Understandablymanycommentatorshavenotfoundthisrationale persuasive.53 ItisalsoevidentintherecentcaseinwhichtheCharityCommissionrejected,forasecond time,anapplicationbyadoptioncharityCatholicCaretochangeitsconstitutionsothatit could restrict its services to heterosexual applicants: To the extent that the attitudes of the donors to the charity (i.e. Catholic Care) are based on religious conviction, they are insufficient to justify the discrimination by the charity because of the public nature of the charitys activities.54 AdharandLeighassertthatapre-determinedjudgmentthatreligiouslibertyismerely personal to the individual concerned [] would be to substantially affect the intrinsic nature

50 R v. Governing Body of JFS School & Ors, UKSC 15, Lord Hope, para. 160 (2009). 51 Ahdar and Leigh, op.cit. note 44, 162. 52 R (on the application of Playfoot) v. Governing Body of Millais School, ELR 484, para. 36 (2007). 53 Javier Garca Oliva, Religious Symbols in the Classroom: A Controversial Issue in the United Kingdom, 3 Bringham Young Law Review (2005), 885. 54CatholicCare(DioceseofLeeds),ApplicationforconsenttoachangeofobjectsunderSection64ofthe Charities Act 1993, ChComm, para. 107 (21 July 2010). oftherightitself.55Thislimitationstrategyonmanifestationofreligionorbeliefmay disfavour minorities by too wide an understanding ofthe harms that flow from less familiar forms of manifestation. 3.The Religiously Motivated/Compelled Distinction ThislimitationstrategyisechoedinEnglishlaw,whichdrawslargelyonArticle9 jurisprudencefromtheEuropeanCourtofHumanRights(ECtHR).AsLordWalker emphasizedinWilliamsonv.SecretaryofStateforEducationandEmployment:Itisclear thatnoteveryactwhichisinsomewaymotivatedorinspiredbyreligiousbeliefistobe regardedasthemanifestationofreligiousbelief.56InR(ontheapplicationofPlayfoot)v. Governing Body of Millais School for example it is stated that [t]he Claimant was under no obligations,byreasonofherbelief,towearthering;nordoesshesuggestthatshewasso obliged.Accordingly,inmyjudgment,theClaimantwasnotmanifestingherbeliefby wearing the ring and Article 9 is not engaged.57 However,theapproachtakenbyR(ontheapplicationofWatkins-Singh)v.TheGoverning Body of Aberdare Girls High School is quite different,for it is argued that Iam unable to accept the contention that there will only be a particular disadvantage or detriment where a member of the group is prevented from wearing something which he or she isrequired by hisorherreligiontowear.Inmyview,thisthresholdistoohigh.58Fivereasonsare providedforthisincludingvariousdefinitionalargumentsand,mostimportantlyforour discussion, through reference to the ECHR judgment DH & others v. Czech Republic and its recognitionofthespecialneedsofminoritiesandanobligationtoprotecttheirsecurity, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselvesbuttopreserveaculturaldiversityofvaluetothewholecommunity.59Instead importanceisattachedinthisjudgmenttotheexceptionalimportanceofidentityand religionevenifthewearingofthearticleisnotanactualrequirementofthatpersons religion or race.60

55 Ahdar and Leigh, op.cit. note 44, 163. 56 Williamson v. Secretary of State for Education and Employment, op.cit. note 34, para. 63. 57 R (on the application of Playfoot) v. Governing Body of Millais School, op.cit. note 51, paras. 23 and 24. 58R(ontheapplicationofWatkins-Singh)v.TheGoverningBodyofAberdareGirlsHighSchool,EWHC (Admin) 1865, para. 51 (2008). 59 Ibid., para. 40; citing Decision of the Grand Chamber of the European Court of Human Rights in DH & others v. Czech Republic, ELR, para. 181 (2008). 60 Ibid., para. 56. There is general concern about whether judges should ever assume competence to decide on this distinction.61 The concern is necessarily sharper in the case of lesser known religions or beliefs, and with respect to subjective determinations and interpretations by a person of what they consider their religion or belief to require of them. Adhar and Leigh argue:Many devout religionists insist that what initially appears, in general terms, to be amerechoice,mayinfactbecomeadutywhentheyactupontheirreligious beliefs in their individual circumstances. [] There is reason then not to limit the recognition of religious liberty to instances of compelled behaviour.62 Inthecaseofaschoolwhichdefendeditsuniformpolicybyinsistingitcompliedwith Muslimrequirementsofdress,Daviesresolutelyrejectssuchastrategy,arguingthat [s]uch a debate is inevitably fruitless. It is even offensive. Islam is no more monolithic than other major religions, and attempting to find an objective interpretation of its requirements is rather like asking Catholic about Christianity and then imposing this on Calvinists.63 This strategyalsoobviatesthecourtfromarticulatingthereasonswhylimitationsarenecessary, making case determinations more opaque and thus giving rise to greater concern. 4.The Core/Peripheral Beliefs and Practices Distinction Theproblemwiththisdistinctionisthatitaffordsgreaterweighttowhatisperceivedby others rather than what is perceived by the claimant. Regarding religious dress cases, such as R(ontheapplicationofBegum(byherlitigationfriend,Rahman))v.Headteacherand Governors of Denbigh High School,64 Davies aptly points out that such cases seem to judge thewearerofreligiousclothingnotaccordingtothemeaningorimportancethatthey attributetoitbutaccordingtothatattributedbyothers.Whosebeliefisunderdiscussion here?65InWilliamsonv.SecretaryofStateforEducationandEmploymentLordNicholls helpfullyrecognizedthatsubjectivityislatentinmanifestationaswellashavingabelief,

61 Ahdar and Leigh, op.cit. note 44, 164. See also Li-ann Thio, Judges and Religious Questions: Adjudicating Claims to Wear Religious Dress in Public Schools, 2(3) Religion and Human Rights (2007), 119-148. 62 Ahdar and Leigh, ibid., 165. 63GarethDavies,RestrictingReligiousClothingintheLightoftheCourtofAppealinSBv.DenbighHigh School Decision of 2 March 2005, 1(3) European Constitutional Law Review (2005), 520. 64 R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School, UKHL 15 (2006). 65 Davies, op.cit. note 62, 519. noting: This is not to saythat a perceived obligation is a prerequisite tomanifestation ofa belief in practice. It is not []66 In the same judgment, however, Lord Walker suggested that:[T]henotionofmanifestingabeliefisparticularlyappropriatetotheareaof religious belief. Most religions require or encourage communal acts of worship of various sorts, preaching, public professions of faith and practices and observances ofvarioussorts(includinghabitsofdressanddiet).Therewillusuallybea centralcoreofrequiredbeliefandobservanceandrelativelyperipheralmatters observedbyonlythemostdevout.Thesecanallbecalledmanifestationsofa religious belief.67 Again,thegeneralquestionarisesofwhetheracourtisbestplacedtodrawupsuch distinctions. This concern is sharper with regard to lesser known religions or beliefs, or newer religionorbeliefswheresuchademarcationmaynotyethavebeendrawneveninternally, and in casesresting onmore subjective determinations by individuals of what they consider their religion or belief to require of them. 5. Reasonable Limitation Approach Asnotedabove,thisrequirescarefulandrigoroustripartiteexaminationoftheinterestsfor limiting manifestation on the one hand and for upholding the appellants freedom of religion or belief on the other.68 This careful, probing and detailed approach is not always evident in English law, though, as Adhar and Leigh have argued, it would indeed appear to be the most satisfactory. It maximizes the possibility of upholding respect for subjective determination of religionorbelief,whileallowingforcarefulconsiderationoftheimplicationsofthe restrictiononpersonsbelongingtominorityreligionsorbeliefs.Ofcoursetherestrictions maynevertheless,andrightly,beimposed.However,thecourthasatleastundertakena review of the implications and had to articulate in detail the reasons why they are necessary. TheRv.JFSSchoolcasedoesundertakeacarefulexaminationofboththeinterestsfor limiting the prerogative of a faith schoolto control its admissions as well as the interests of excludedstudentstoarticulategroundsforinterference;andtheR(ontheapplicationof

66 Williamson v. Secretary of State for Education and Employment, op.cit. note 34, Lord Nicholls, para. 33. 67 Ibid., Lord Walker, para. 62. 68 Ahdar and Leigh, op.cit. note 44, 170-173. Watkins-Singh)v.TheGoverningBodyofAberdareGirlsHighcase69carefullyconsiders the exceptional importance of wearing thekara to the claimantas wellasgivingattention to the schools reasons for disallowing it. Suchcarefulconsiderationoftheimplicationsoftherestrictiononthepersonholdingthe religion or belief is not evident in much other case law. For example, in McFarlene where the EmploymentAppealTribunalreviewedthecriticismoftheemploymenttribunalfornot havingconsideredthequestionofthepracticabilityofaccommodatingMcFarlenesrequest tobeabsolvedfrombeingrequiredtogiveadvicetosame-sexcouplesinhispsychosexual counsellingwork,itseemsthattheprinciplesoflegitimaterefusalmeanthereisnoneedto consider the implications of the restriction on McFarlene: [T]hese points [] do not address the central element in the Tribunals reasoning, which was not concerned with the practicability of accommodatingthe Claimant butwithwhetherRelatecouldlegitimatelyrefusetoaccommodateviewswhich contradicteditsfundamentaldeclaredprinciples.Inasituationofthiskind detailedevaluationsofthekindurgedbyMrCordreyareoutofplace:the question of whether the employer is entitled to treat the issue as one of principle, in which compromise is inappropriate.70 As this quick overview of some recent case law suggests, no consideration has been given to whether or not the person concerned belongs to a minority religion or belief and its possible implications for the survival and continued development of the identity and culture of persons belonging to religious or belief minorities. In some cases, however, this is picked up through the question of indirect discrimination. It is submitted that this falls short of the objectives of minority rights as upheld in international norms.Adistinctivetensionarisesherebetweentheneedtoupholdindividualsubjectivityon questionsofreligionorbeliefandtheargumentthatmanifestingreligionorbeliefin communitywithothersmayalsogiverisetoquestionsoftherightofpersonsbelongingto minorities to enjoy theirreligious culture and profess and practise their religion with others. Theneedtoupholdbothindividualsubjectivityaswellasminoritypractices,ina contextualized and fact-based manner, is a challenging one and one that, on occasion, can be

69 R (on the application of Watkins-Singh) v. The Governing Body of Aberdare Girls High School, op.cit. note 57. 70 McFarlene v. Relate Avon Ltd EAT/0106/09, para. 29 (2009). dealt with through indirect discrimination. Indirect discrimination is defined byLadyHale in R v. JFS School as: Theruleagainstdirectdiscriminationaimstoachieveformalequalityof treatment: there must be no less favourable treatment between otherwise similarly situatedpeopleongroundsofcolour,race,nationalityorethnicornational origins.Indirectdiscriminationlooksbeyondformalequalitytowardsamore substantiveequalityofresults:criteriawhichappearneutralontheirfacemay have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.71 Where that disproportionately adverse impact relates to a person belonging to a religious or belief minority, the consequences may have an impact on the very survival and development ofthatculture.Thisisnottosuggestthatthereshouldonlybeconcernforindirect discrimination for persons belonging to such minorities, merely that in such an instance there are perhaps grounds for heightened concern about potentially wider consequences. In determining a case of indirect discrimination, it is necessary: a)to identify the relevant provision, criterion or practice which is applicable;b)to determine the issue of disparate impact, which entails identifying a pool for the purpose of making a comparison of the relevant disadvantages; c) to ascertain whether the provision, criterion or practice also disadvantages the claimant personally; and (d)todeterminewhetherthispolicyisobjectivelyjustifiedbyalegitimateaim, andtoconsider(iftheaboverequirementsaresatisfied)whetherthisisa proportionate means of achieving a legitimate aim.72 IndirectdiscriminationwasfoundinthecaseofR(ontheapplicationofWatkins-Singh)v. TheGoverningBodyofAberdareGirlsHighSchool.Thatcase,however,wentmuch further:itnotonlycitedECtHRcaselawthatemphasizedtheneedtoupholdminority rights,73 but dismissed the schools assertion that allowing the kara to be worn would lead to

71 R v. Governing Body of JFS School & Ors, op.cit. note 49, para. 56. 72 R (on the application of Watkins-Singh) v. The Governing Body of Aberdare Girls High School, op.cit. note 57, para. 37. 73Ibid.,para.40,citingDecisionoftheGrandChamberoftheECHR,DH&othersv.CzechRepublic,ELR, para. 181 (2008). discrimination against others who continued to be forbidden to wear jewellery. The judgment in fact used the occasion to expand on the need to create an environment that was hospitable to diversity and minority rights, emphasizing that: (84)[T]hereisaveryimportantobligationimposedontheschooltoensurethat itspupilsarefirsttolerantastothereligiousritesandbeliefsofotherracesand otherreligionsandsecondtorespectotherpeoplesreligiouswishes.Without those principles being adopted in a school, it is difficult to see how a cohesive and tolerant multi-cultural society can be built in this country.In any event, in so far as the intention of the uniform policy is to eliminate bullying, there is no rational connection between this objective and eliminating signs of difference. (85)Thisshowsclearlyfirstthatthedefendantandtheschoolshouldnothave sought to remove the potential cause of tension by refusing to allow the claimant to wear the Kara but second that instead it should have taken steps to ensure that theotherpupilsunderstoodtheimportanceofwearingtheKaratotheclaimant and to other Sikhs so that they would then tolerate and accept the claimant when wearing the Kara.74 Itissubmittedthattoclaimneutralityandeven-handednessisnotsufficient,beitinthe contextofEnglishlaworelsewhere,andthatthisinfactevadesthewholerationalefor minorityrightsandotherdifficultquestions.Infact,onemightconcurwithXanthakis observationthat[t]heneutralstatedoesnotpromotejustice;rather,itmaintainsthestatus quo;75henceaccommodatingtheidentityandcultureofthemajorityinthepublicsphere but not that of the minority. C. ProtectionoftheSurvivalandContinuedDevelopmentoftheIdentityofReligious Minorities and Allowing Such Persons to Enjoy their Culture It follows from the above that there are very few instances where cases grapple directly with the third question, that of the need to adopt positive legal measures to protect the survival and continued development of the identity of persons belonging to religiousor belief minorities,

74 Ibid., paras. 84-85. 75 Alexandra Xanthaki, Multiculturalism and International Law Discussing Universal Standards, 32(1) Human Rights Quarterly (2010), 21-48, at 29. to ensure theireffectiveparticipation in decisions whichaffect them,to have due regard for them, and to allow them to enjoy their culture.Itisforreasonssuchasthisthatsomescholarshaveshiftedtheirattentionfrom discriminationlawandhumanrightstotheconceptofmulticulturalismandtheavenueof multiculturalpolicies.Xanthakihasdefinedmulticulturalismasadescriptivetermthat suggestsapoly-ethnicsociety;anideologythatacceptsthatethnicgroupswishtomaintain theirlanguageandculturaltraditionswithinthestate;76andthatitisaboutrecognitionof culturalmembershipinthepublicsphere.77Itistoincludepositiverecognitionofpersons belonging to minorities and offer overwhelming priority to mechanisms of belonging which drawonthemanysourcesofprivateidentity(bothindividualandgroup)78inorderto positivelyrecognizethemwithinthepublicsphere.Suchapproachesdirectlychallengethe presumptionsofashallowclarioncallofneutralityandinsteadacknowledgediversity, engagewithit,andbalancecomplexquestionsincarefulandrigorousexamination,bothin the courts and elsewhere in society. In the context of persons belonging to religious or belief minorities it rejects the modernist schema of privatizing identities: [where] we are expected to act as undifferentiated citizens in the public sphere, but remain free to express our distinct cultural or religious identities in the private domain of family and communal life; noting the multiple tensions and exposed cracks in this privatizing identities formula that arise.79 ItissubmittedthatEnglishlawhas,onoccasion,neglectedtopaytherequisiteattentionto the rights of persons belonging to religious or belief minorities. At the very minimum courts should adopt the view that having and adopting religion or belief as well as manifesting it are to a large extent subjective.80 The above review suggested that the ambit of religion or belief is already widely drawnin English law. After examining the actual facts of the case, andof manifestation, it should be noted that disregarding the subjective element of importance to the claimantinfavourofamajoritarianperspectivebeitthatofthewidersocietyoroftoken other practitioners of that religion or beliefdisadvantages individuals by denying them their status as key agents in determining their religion or belief and what is required by it. This is nottosaythatmanifestationcannotlegitimatelybelimited.Itcan.However,reasonshave

76 Ibid., 23. 77 Ibid., 28. 78 Malik, op.cit. note 24, 289. 79AyeletShachar,Privatizing Diversity:ACautionary Talefrom ReligiousArbitrationin FamilyLaw, 9(2) Theoretical Inquiries in Law (2008), 574. 80Forexample,thisunderstandingisreflectedin:Williamsonv.SecretaryofStateforEducationand Employment, op.cit. note 34, Lord Nicholls, para. 33. beengivenforwhylimitingstrategiesthatfallshortofthereasonablelimitationapproach shouldbetreatedwithcaution,notablywithregardtotherisksthesemaycarryforpersons belonging to minorities.Itisnotacceptabletoresignourselvestothepositionthat[i]tis,perhaps,inevitablethat religionwillbeaffordedlessprotectioninthehumanrightscanonthanrightswithmore instrumental value or whose exercise takes place wholly within the private domain.81 In fact such resignation may be harmful. Suppressing the expression of minority identity [] puts off the difficult but necessary accommodation process which is likely to be the only route to a genuinetolerantsocialpeace.82Ofthecasesreviewed,thedetailedandcarefulapproaches takeninRv.GoverningBodyofJFSSchool&Ors,83andparticularlyinR(onthe applicationofWatkins-Singh)v.TheGoverningBodyofAberdareGirlsHighSchool,84 come closest to taking on board minority rights standards that positively consider the needs of persons belonging to minorities and the value of cultural diversity to society at large. VII.CONCLUSION Minority,inthispaper,hasalertedustonon-dominance,self-identificationandan understandingofinternationalnormativestandardsregardingtheneedforspecial considerationtoensurethecontinuityanddevelopmentofthereligiousorbeliefcultureof personsbelongingtominorities.Thatculture,inthiscontext,necessarilyholdsmuch individualcolour.Itdoesnotimplycompletedeferencetoobjectiveandmajoritarian perspectivesofwhataparticularreligionorbeliefholdsorrequiresofaparticular believer;butneitherisitnegligentoftheextraburdenthatfallsonpersonsbelongingto minoritiestomaintaintheirculture.Thedelicatebalanceliesinneitherdeifyingthe individual,norexploitingtheviewsofexpertswithinthatreligionorbeliefinorderto squash the sincere beliefs of the individual concerned. Ssenyonjo has suggested an approach that focuses more on the importance of legitimate justifications for interference rather than on

81 Tom Lewis, What Not to Wear: Religious Rights, The European Court, and the Margin of Appreciation, 56 International Comparative Law Quarterly (2007), 414. 82 Davies, op.cit. note 62, 530. 83 R v. Governing Body of JFS School & Ors, op.cit. note 50, Lord Hope, para. 160. 84 R (on the application of Watkins-Singh) v. The Governing Body of Aberdare Girls High School, op.cit. note 57,para.40andparticularlyitscitingofthedecisionoftheGrandChamberoftheECHRinDH&othersv. Czech Republic [2008] ELR, para. 181. classifying the beliefs in question as mainstream, extraordinary, or correct.85 This gives risetoadistinctivetension.Weneedtoupholdindividualsubjectivityonquestionsof religion or belief while also being alert to the rights of persons belonging to religion or belief, and further to the question of belief within religion. In striking this balance, we should neither over-individualizetherightsconcernednorbeoverlydeferentialbyarrivingatobjective, community-dictateddeterminationsofwhatconstitutesthebeliefandwhatpracticeit requires.Theneedtobecognizantofbothindividualsubjectivityaswellasminority practices, in a contextualized and fact-based manner, is a challenging one. On occasion, this challenge has been sensitively dealt with through indirect discrimination in English law but it is timely to seek to ensure this is considered with more care and consistency in the future.

85ManisuliSsenyonjo,LimitsontheFreedomtoManifestOnesReligioninEducationalInstitutionsin Uganda and the United Kingdom, 7(2) International Journal of Constitutional Law (2009), 305.