Monday night’s fascinating seminar on Article 9, “Outlawing God”, saw Dinah Rose QC, John Bowers QC, Dr Evan Harris (Liberal Democrat former MP) and Rabbi Michael Laitner (solicitor and Orthodox rabbi) square off over the relationship of the courts to religious belief and believers, refereed (and sometimes stoked) by Joshua Rozenberg in the chair. The seminar, which raised almost £2,000 for legal advice clinics at the Hebrew University, can be listened to here.
There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.
A brief discussion of equal marriage brought the consensus that giving homosexual couples the right to civil marriage could have no real impact on religious believers; but the more interesting question as to whether the government could prevent Christian or Jewish groups who wished to from conducting religious marriages between homosexual partners from doing so under the Marriage Act was not fully answered.
The longest discussion of the evening was reserved for circumcision in the light of the recent German court decision effectively rendering circumcision an offence. Dinah Rose argued that a parent can consent to a procedure on a child if it is in that child’s best interests; and that “best interests” encompass not only physical wellbeing but also the child’s social, family and cultural context: part of a child’s wellbeing is being part of a community. Circumcision was for some communities part of that. As John Bowers pointed out, any disbenefit or harm on the other side of the balance would have to be a matter of evidence.
This brings the debate firmly into the familiar territory of proportionality: would interfering with parents’ choices in this matter be a proportionate means of achieving a legitimate aim? What would be the legitimate aim, in this case? If the aim is to protect the child, the courts must be able to assess the evidence of any harm and evaluate the risk of such harm as against the Article 9 protection and the best interests claimed.
Further, Dinah and John thought that the proportionality exercise meant that the courts must decide which beliefs are worthy of respect in a democratic society and which are not. Here we come up firmly against Evan’s point: why should a religious belief be worthier of protection than any other?
Moreover, there seems to be a fundamental problem here which was not resolved by the panellists: although it would seem that religious believers do not want their practices to interfered with by the courts, when a religious group seeks legal protection for one of those practices the exercise will necessarily mean external adjudication of the significance and sincerity of the beliefs they espouse in order to assess whether Article 9 bites at all, and then to determine whether the interference is proportionate. It seems dangerously close to asking the court to adjudicate on religious doctrine, exactly what it said – quite rightly – it would not do in Khaira v Shergill  EWCA Civ 983. Rather, must not the assumption be that the state must be very careful indeed before banning anything which doesn’t cause active and demonstrable harm?