Shaheen Rahman QC is a barrister at One Crown Office Row
The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs. The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).
The policy at the heart of this highly publicised battle between the coroner and faith groups has drawn criticism from across the political spectrum. It is to the effect that
No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.
It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of death. Such requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.
A flawed and irrational policy
The defendant, who represented herself at the judicial review hearing primarily by way of written submissions, argued that the policy, which she described as a “cab-rank rule” was necessary to ensure that all bereaved people whose deceased relatives fell under her remit were treated fairly, regardless of their religion or beliefs.
The Divisional Court gave that proposition short shrift. It held, at paragraphs 68-70, that
any determination of the order in which deaths are to be dealt with, and, specifically, any decision as to whether one death should take priority over others, may well be a complex task which involves balancing different rights and interests within the resources available to the particular Coroner.
However, coroners were required to have a policy that was flexible, so as to be able to deal with a range of possible situations, notwithstanding that the prioritisation of one death may lead to delays for others.
The power exercised by the coroner in this case was noted to be akin to a power derived from statute, and the principle against fettering a discretion accordingly applied. The defendant breached that principle by applying a blanket rule that prevented her from taking into account the circumstances of any individual family where they had a religious basis, even where there would be limited or no effect upon her other work [paragraphs 86-7]. The policy was accordingly flawed on this ground.
The defendant’s indication that she accepted the need for prioritisation of deaths involving a homicide investigation or a question of organ donation did not assist her cause. Rather, it confirmed that she did not, in fact, deal with every case in strict chronological order and was not, in truth, operating a “cab-rank” policy, at all.
The court concluded:
91. The question which then arises is whether the policy is capable of rational justification. On its face, it precludes taking into account representations which have a religious basis and it thereby singles out religious beliefs for exclusion from consideration. There is no good reason for this exclusion. It is discriminatory and incapable of rational justification.
92. If, on the other hand, it precludes taking into account any individual circumstances of any kind, whether or not based on a religious faith, there again is no reason for that absolutist stance and so again the policy is incapable of any rational justification.
Discrimination under the ECHR and EQA
Moreover, the policy, elsewhere described by the defendant as an “equality protocol” was found to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination under the EQA, as it discriminated against Jews and Muslims.
At paragraphs 94 to 99 the court considered the leading case of Eweida v United Kingdom 57 EHRR 213 and a person’s right to manifest religion or belief, one of the rights protected by Article 9 of the ECHR. It noted the requirement under Article 9(2) that any limitation placed upon that right must be prescribed by law and necessary in a democratic society in order to serve a legitimate aim, including the rights and freedoms of others, which could be invoked by the defendant in this case.
However, in order for any limitation on a fundamental right to be necessary, it would have to satisfy the principles of proportionality. Four questions arise here, all of which must be met:
(1) Is the legitimate objective sufficiently important to justify limiting a fundamental right?
(2) Are the measures that have been designed to meet it rationally connected to that objective?
(3) Are they no more than are necessary to accomplish it?
(4) Do they strike a fair balance between the rights of the individual and the interests of the community?
It was not in dispute that the right to manifest religion was in play, nor that the defendant’s policy interfered with that right. It was not argued that such interference was not prescribed by law – clearly the defendant had the power in principle to adopt a policy of some sort to protect the rights of others, e.g. those who may need an urgent decision from the coroner for non-religious reasons such as organ donation.
The court placed emphasis at paragraph 102 on the phrase “in a democratic society”, noting the observations of the Divisional Court in R (British Broadcasting Corporation) v Secretary of State for Justice  EWHC 13 (Admin);  1 WLR 964, at paragraph 49:
… These words … are not superfluous. The framers of the Convention, arising as it did out of the ashes of European conflict in the 1930s and 1940s, recognised that not everything that the state asserts to be necessary will be acceptable in a democratic society. The jurisprudence of the European Court of Human Rights has frequently stressed that the hallmarks of a democratic society are pluralism, tolerance and broad- mindedness …
The judgment did not consider each of the four proportionality questions in turn, noting that the fundamental difficulty with the defendant’s policy was that “it fails to strike any balance at all, let alone a fair balance.” It expressed the belief that “reasonable people in society” would not regard the expedition of cases to be “queue jumping” in certain circumstances. It noted the evidence from other coroners indicating that it was perfectly possible to have a policy where cases are prioritised if there is a need for the early release of a body, for any reason, be it secular or religious [103-7].
The judgment at paragraphs 109 to 112 considers the coroner’s understanding that the EQA does not allow her to give priority to one person over another. This was “misguided”. Section 158 of the Act permits positive action in certain circumstances such as these to meet the needs of those with protected characteristics. That is by contrast to positive discrimination which is generally prohibited by the Act. This position is mirrored in the Convention jurisprudence, as illustrated by the decision in Jakóbski v Poland (2012) 55 EHRR 8 which concerned the refusal of a special vegetarian diet to a Buddhist prisoner on resource grounds, which was a breach of Article 9.
The court noted this as an example of how a policy which on its face appears to apply to everyone equally may in fact have an unequal impact on a minority:
111. … In other words, to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality.
Turning to Article 14 and the need to secure the enjoyment of ECHR rights and freedoms by all without discrimination, the court noted that the principle of equality was one of the “most cherished rights in the Convention and the HRA”  and that “Although the principle of equality requires like cases to be treated alike, it is not always sufficiently appreciated that it also requires that different cases should be treated differently.” 
It was further noted that an important point of equality law was that in a discrimination case, what has to be justified is not only the underlying measure but the discrimination itself. In this case, even if the policy could be justified under Article 9 (which it could not), it was difficult to see what possible justification there could be for it. The need for a “bright line” was not sufficient, particularly where in reality the defendant was not considering all cases in strict chronological order. Moreover, there was the evidence that other coroners were not adopting a strict policy, and that this was not causing particular difficulty. Resource issues were likewise an insufficient basis upon which to justify a policy whereby religious reasons for a request for expedition were excluded from consideration altogether, even if in certain cases limits on resources might be a reasonable explanation for why a particular request could not be met. Accordingly, the defendant’s policy amounted to a violation of Article 14 as well. [119-125]
Indirect Discrimination under the EQA
The EQA is discussed in the judgment as set out above in the context of the defendant’s arguments in defence of the policy. A separate argument regarding indirect discrimination under the EQA was advanced by the claimants (without the support of the Chief Coroner). It was accepted that it did not materially add to the arguments under Article 14 but the court agreed that it was important that it was determined and that it would be undesirable for the arguments involved, which had significant overlap with those in the judicial review, to be determined elsewhere, i.e. in a County Court discrimination claim.
The court rejected the Chief Coroner’s argument that the policy did not put the second claimant at any particular disadvantage as compared to those that did not share the protected characteristic of being of the Jewish faith. It noted that in order to give effect to the will of Parliament, social legislation such as the EQA should be given a broad and generous interpretation so as to give full effect to its underlying purposes.
Therefore, for the reasons that underpinned the proportionality findings under the Convention grounds, the court held that there was also a breach of section 29 of the EQA by the defendant, as either a service provider or in the performance of a public service. Her policy was indirectly discriminatory pursuant to section 19 by placing those with protected characteristics such as the second claimant’s Jewish faith under a particular disadvantage as compared to others who did not share that characteristic. [137-143]
Public Sector Equality Duty
This was the one ground advanced by the claimants that failed, but the judgment on this point offers scant reason for the defendant to be cheerful. The claimants argued that the defendant failed to have due regard to the needs of Jewish or Muslim members of the community. Further, that if the policy was found to be discriminatory it must follow that the public sector equality duty had been breached. The court noted that this duty is essentially a procedural one, without the obligation to achieve a certain result. In this case, the coroner had purported in fact to have devised the policy whilst being acutely aware of the impact that it might have on certain minority religious communities within her area. So, she had due regard to her duty. The problem was that having done so, she entirely failed to comprehend that the policy she devised was discriminatory as a matter of law. [149-151]
Revised guidance and policy
It is interesting to note that the argument that the policy represented an unlawful fetter on the defendant’s discretion and that it was irrational originated with the Chief Coroner, who had initially supported the defendant’s position. The defendant continued nonetheless to rely upon that initial support and the previous Chief Coroner’s guidance to the effect that “The law does not allow the coroner to give priority to any one person over another.”
That guidance will now be revisited in light of the judgment [30, 159]
The defendant herself sought guidance from the court as to what the correct policy should be going forward. [152-3].
This they declined to provide, noting that it was not for the court to substitute its own judgment in this way:
156. It would be perilous, in our view, for this Court to attempt to anticipate the precise circumstances of individual cases which may or may not arise in the future.
157. The other consideration is this. It is not for the Court to substitute its own view for that of the public authority whose policy decisions are challenged here. That is a matter for the relevant public authority to which those functions have been entrusted by Parliament. Although it is an important part of this Court’s function to review the legality of whatever decisions or policies the Coroner has made in the past, what policy she should have for the future is essentially a matter for her.
The implications of the judgment are however usefully summarised for the defendant, lest there be any doubt, at paragraph 160:
160. We can pull together the legal threads of our judgment in the following way:
(1) A Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner, including the Coroner’s decision whether to release a body for burial.
(2) A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence of prioritising one or some cases may be that other cases will have to wait longer for a decision. It is not necessary that all cases are treated in the same way or in strictly chronological sequence.
(3) Whether to accord one case priority over another or others is for the Coroner to determine. The following further points apply:
a) It is in principle acceptable for the Coroner to implement a policy to address the circumstances when priority will or may be given, so long as that policy is flexible and enables all relevant considerations to be taken into account.
b) The availability of resources may be a relevant consideration in drawing up that policy or in making the decision in any individual case but limitations on resources does not justify discrimination.
(4) It would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition.
The defendant has issued the following response to the judgment:
[The Senior Coroner] is grateful for the High Court’s clarification of the law …
In accordance with this, her office will immediately stop dealing with families in chronological order. In future, instead of considering no family for prioritisation, the Senior Coroner will consider every family for prioritisation. In deciding the order of priority, she will take into account all relevant considerations, including the special needs of each individual family. The Senior Coroner looks forward to the Chief Coroner’s new guidance, which he has indicated he will produce soon. She will then undertake a consultation process with stakeholders before producing her own policy.