European Court of Human Rights

FOURTH SECTION

Application no. 7552/09
by THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
against the United Kingdom
lodged on 29 January 2009

STATEMENT OF FACTS

THE FACTS

The applicant, the Church of Jesus Christ of Latter-day Saints, is a religious organisation registered as a private unlimited company incorporated on 1 August 1961 in the United Kingdom. The applicant was represented before the Court by Daniel Clifford of Devonshires Solicitors and Professor Mark Hill of Pump Court Chambers, both based in London.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The Local Government Finance Act 1988 requires a valuation officer for each local government area to compile and maintain a local Rating List for the area. Premises included on the list are liable for the payment of business rates. Places of “public religious worship” are exempt from the tax. Premises used for charitable purposes are entitled to an 80% reduced liability.

The Preston Temple in Lancashire, Northern England, owned by the applicant, was refused the statutory tax exemption reserved for places of “public religious worship”. It was nonetheless recognised as a building used for charitable purpose and granted the 80% reduced liability.

The Temple is considered, by the applicant and its members (Mormons), to be the House of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the Temple carry profound theological significance to members, who believe as a tenet of their faith that only the worthy may be admitted. Access to the Temple is reserved to “Patrons”, that is members of the applicant religious organisation holding a “recommend”, which is issued after an interview, vouches for good standing, demonstrating belief in Mormon doctrine, an appropriate way of life and payment of the required contribution to church funds.

On 8 November 1998 the valuation officer entered the Temple on the Rating List. On 5 March 2001 the applicant applied to have the Temple removed from the Rating List, claiming the benefit of the exemption for places of “public religious worship”.

On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the Temple to be exempt under the statutory provision.

On 14 December 2005 the Lands Tribunal overturned that decision.

On 24 November 2006 the Court of Appeal dismissed the applicant’s appeal.

On 30 July 2008 the House of Lords unanimously dismissed the further appeal (Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter day Saints [2008] UKHL 56), holding that that a place of “public religious worship” must be one that is open to the general public. It rejected the applicant’s contention that “public religious worship” should be construed as “congregational worship.”

Four of the five Law Lords considered that there had been no interference with the applicant’s rights under Article 9 of the Convention. Lord Hoffman held as follows:

“12. ... In my opinion the 1988 Act does not discriminate on grounds of religion. The rule that exemption is accorded to places of worship only if they are open to the public is perfectly general. Anyone may comply. [Counsel for the applicant] submits that the discrimination is indirect. It is true that anyone may comply, but the reason why the Mormons cannot comply is that their religion prevents them from doing so. It was therefore discrimination not to treat them differently. The European Court of Human Rights has decided that article 14 applies to indirect discrimination resulting from a failure to accord different treatment to cases which ought to be treated differently; see Thlimmenos v Greece (2001) 31 EHRR 15; DH v Czech Republic (Application No 57325/00)(13 November 2007, BAILII: [2007] ECHR 922) at paragraph 175).

13. In order to constitute discrimination on grounds of religion, however, the alleged discrimination must fall ‘within the ambit’ of a right protected by article 9, in this case, the right to manifest one’s religion. In the present case, the liability of the Temple to a non-domestic rate (reduced by 80% on account of the charitable nature of its use) would not prevent the Mormons from manifesting their religion. But I would not regard that as conclusive. If the legislation imposed rates only upon Mormons, I would regard that as being within the ambit of article 9 even if the Mormons could easily afford to pay them. But the present case is not one in which Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That seems to me an altogether different matter.

14. For example, I do not think that a Sabbatarian could complain that he was discriminated against because he was unable, on religious grounds, to provide services on the Sabbath and therefore earned less than people of a different religion. A case which in my opinion is very much in point is M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91, in which a woman would have been able to secure a reduction in her liability for the maintenance of her child if she had been living with a male partner. She was unable to qualify because, on account of her sexual orientation, she chose to live with a female partner. The House of Lords decided that the alleged act of discrimination did not fall within the ambit of article 8 (her right to family life and in particular her right to live with a female partner) because loss of the opportunity to gain a financial advantage was too remote from interference with the right in question. The same seems to me true of this case.

15. Furthermore, I think that even if this can be regarded as a case of indirect discrimination, it was justified. Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation and in my opinion it was entitled to take the view that public access to religious services was such a benefit.”

Lord Hope of Craighead agreed with Lord Hoffman and added:

“31. ... I do not see this case falling within the ambit of article 9. Those who are qualified to worship in the Temple are not prevented from manifesting their religion or their belief by the fact that it is subject to non-domestic rating, the legislation is not directed at Mormons because of what they believe in. It applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship. It is easier to see the case as falling within the ambit of article 1 of Protocol 1, but the second paragraph of that article preserves the right of the State to secure the payment of taxes or other contributions or penalties. In my opinion Parliament’s decision as to the scope of the exemption was within the discretionary area of judgement afforded to it by that paragraph. ...”

Lords Carswell and Mance also concurred with Lord Hoffman’s reasoning. Lord Scott of Foscote, however, differed from the majority in his concurring opinion and found that the difference in treatment fell within the ambit of Article 9, although he considered that the Article was not violated:

“49. Lord Hoffman and Lord Hope have expressed the view that the withholding of rating relief from the Temple does not fall within the ambit of article 9. I am uneasy about that conclusion because it is well settled that an allegedly discriminatory act said to be in breach of article 14 does not need to constitute an actual breach of the substantive article within whose ambit the act in question is said to fall. It needs simply to be within the ambit of the substantive article. The case-law as to when an act of discrimination, not being in breach of a particular substantive article, will sufficiently relate to that article in order to be capable of constituting a breach of article 14 does really no more than ask whether the act is within ‘the ambit’ of the article. There is no precise yardstick; the requirement is left inherently, and perhaps unsatisfactorily flexible. It seems to me, however, that the levying of taxation on a place of religious worship, or on those who enter the premises for that purpose, would be capable in particular circumstances of constituting a breach of article 9 and, accordingly, that it is difficult to regard the levying of rates on such premises as otherwise than within the ambit of article 9. I would prefer, therefore, to examine the second issue on the footing that the withholding of rating relief from the Temple does fall within the ambit of article 9 for article 14 purposes.

50. If that is so, there is, as it seems to me, an element of discrimination that requires to be justified. The discrimination consists of the denial of rating relief for the Temple on the ground that, although a place of religious worship, it is not a place of public religious worship. No one who is not a Mormon, or who, although a Mormon, does not possess a ‘recommend’ permitting him or her entry, can enter the Temple (see para 5 of Lord Hoffman’s opinion). The ‘open doors’ requirement in order to enable premises used for religious worship to qualify for rating relief discriminates, adversely to the Mormons, between premises used for religious worship that are open to the public and those that are not. If that is right, the discrimination requires to be justified if it is to escape being held unlawful.

51. I would, for my part, unhesitatingly hold that the grant of rating relief to premises for religious services that are open to the public and the withholding of that relief from premises for religious services which take place behind closed doors through which only a select few may pass is well justifiable and within the margin of appreciation available to individual signatory states. First, states may justifiably take the view that the practice of religion is beneficial both to the individuals who practise it as well as to the community of whom the individuals form part, and that, therefore, relief from rating for premises where religious worship takes place is in the public interest. But, second, states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices. I can see every reason why a state should adopt a general policy under which fiscal relief for premises used for religious worship is available where the premises are open to the general public and is withheld where they are not. In my opinion, the withholding of rating relief from the Temple does not constitute a breach of article 14, whether considered in the context of article 9 or, for the same reasons, in the context of article 1 of the 1^st Protocol.”

B.  Relevant domestic law

The relevant provisions of the Local Government Finance Act 1988 are as follows:

Section 41 - Local Rating Lists

“(1) In accordance with this Part the valuation officer for a charging authority shall compile, and then maintain, lists for the authority (to be called its local non-domestic rating lists)...”

Section 43 – Occupied Hereditaments Liability

“(6) This subsection applies where on the day concerned the ratepayer is a charity or trustees for a charity and the hereditament is wholly or mainly used for charitable purposes (whether of that charity or of that and other charities).”

Section 51 – Exemption

“Schedule 5 below shall have effect to determine the extent (if any) to which a hereditament is for the purposes of this Part exempt from local non-domestic rating.”

Schedule 5, paragraph 11 – Places of religious worship etc.

“(1) A hereditament is exempt to the extent that it consists of any of the following:

(a) a place of public religious worship which belongs to the Church of England or the Church in Wales ...or is for the time being certified as required by law as a place of religious worship;

(b) a church hall, chapel hall or similar building used in connection with a place falling within paragraph (a) above for the purposes of the organisation responsible for the conduct of public religious worship in that place.”

COMPLAINTS

The applicant complained under Article 9 alone and in conjunction with Article 14 of the Convention that the Temple did not fall within the statutory exemption because of the applicant’s religious beliefs and was discriminatory as it did not allow access to the general public, whereas those that did, were granted the exemption.

The applicant complained under Article 1 of Protocol 1 alone and in conjunction with Article 14 that the denial of the statutory exemption was a disproportionate measure which discriminated against the applicant on grounds of religion.

The applicant complained under Article 13, that the House of Lords considered itself bound by an earlier decision on the substantially identical issue in Church of Jesus of Latter-day Saints v Henning [1964] AC 420 and in doing so failed to adequately apply the Convention, giving insufficient weight to its jurisprudence.

QUESTIONS TO THE PARTIES