QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE CARR
| The Queen (on the application of Atta Ul Haq)
|- and -
|Walsall Metropolitan Borough Council
Jonathan Auburn and Zoe Gannon (instructed by the Solicitor, Walsall Metropolitan Borough Council) for the Defendant
Hearing dates: 4-5 December 2018
Crown Copyright ©
Lord Justice Singh and Mrs Justice Carr:
Factual and Procedural Background
"d) Any additional memorial [besides a headstone/table conforming to the dimension requirements stipulated in Rule 6.12(a)-(c)] in the form of a surround will not extend beyond 610mm. (2 ft.) from the head end of the grave space or beyond the width of the grave space nor be of a height greater than 100mm (4 ins.)
g) No kerbstone or any other form of monument or memorial whatsoever will be allowed in this section of the cemeteries.
h) Nothing else may be placed or erected on or over a grave except wreaths and flowers at the time of interment."
"No kerbstone or any other form of monument or memorial whatsoever will be allowed in this section of the cemeteries. However, upon payment of a fee, the council shall install a standard wooden frame level with the surrounding ground that will not impede the grass maintenance regime. The council will not maintain such a frame and will require it to be removed and replaced if a further burial takes place".
"Subject to the provisions of this order, a burial authority may do all such things as they consider necessary or desirable for the proper management, regulation and control of a cemetery."
"A burial authority may enclose, lay out and embellish a cemetery in such manner as they think fit, and from time to time improve it, and shall keep the cemetery in good order and repair, together with all buildings, walls and fences thereon and other buildings provided for use therewith."
"(1) A burial authority may grant, on such terms and subject to such conditions as they think proper
(a) to any person
(i) the exclusive right of burial in any grave space or grave, or the right to construct a walled grave or vault together with the exclusive right of burial therein; or
(ii) the right to one or more burials in any grave space or grave which is not subject to any exclusive right of burial;
(b) to the owner of a right described in (a)(i) or (ii) (or to any person who satisfies them that he is a relative of a person buried in the grave or vault, or is acting at the request of such a relative and that it is impractical for him, or such relative, to trace the owner of the right so described), the right to place and maintain, or to put any additional inscription on, a tombstone or other memorial on the grave space, grave or vault in respect of which the right so described subsists; "
"(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 limitations 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."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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."
"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are
religion or belief; "
The Claimant's Grounds
(1) Breach of Article 9 of the ECHR.
(2) Breach of Article 8 of the ECHR.
(3) Direct discrimination contrary to section 13 of the 2010 Act.
(4) Indirect discrimination contrary to section 19 of the 2010 Act.
Submissions of the Parties
Relevant principles under Article 9 of the ECHR
"95. As is apparent from that passage, there are several things of importance to note about the terms of article 9.
96. First, it does not protect only freedom of religion. It protects freedom of all thought (including the beliefs of those who have no religious faith) and freedom of conscience.
97. Secondly, the first right set out in article 9 (the right to freedom of thought, conscience and religion) is an absolute one. The second right (freedom to change religion or belief) is also absolute. However, the third right (freedom to manifest one's religion or beliefs) is not absolute but can in principle be subject to limitations.
98. Thirdly, as paragraph 2 of article 9 makes clear, for those limitations to be lawful the following requirements must be satisfied:
(1) The limitation must be 'prescribed by law'.
(2) The limitation must be necessary in order to serve one of the legitimate aims set out: in particular reliance can be placed by the defendant in the present context on 'the protection of the rights and freedoms of others'.
99. For a limitation on a fundamental right such as this to be 'necessary', it must satisfy the principles of proportionality, which are well established in the case law both of the European Court of Human Rights and of our own courts under the HRA. It is now well established that the following four questions have to be addressed:
(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? and
(4) Do they strike a fair balance between the rights of the individual and the interests of the community?"
"The kind of society which is envisaged by the Convention and the HRA is one which is based on respect for everyone's fundamental rights, on an equal basis. it is a society which is characterised by pluralism, tolerance and broad-mindedness. It regards democracy as being a community of equals. "
" What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority. 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."
" when questions of 'manifestation' arise, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in Article 9 the belief must be consistent with basic standards of human dignity or integrity. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. It must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. These threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention "
" Article 9 is not engaged unless the complainants' activity under consideration is within the scope of the protection the Article affords to the complainants' beliefs. As to this, the Strasbourg jurisprudence has consistently held that Article 9 does not protect every act motivated or inspired by a religion or belief. "
"The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practice or observe his or her religion without undue hardship or inconvenience. "
"... Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing. "
Application of the above principles to the facts of this case
"Under usual circumstances, only the graves of scholarly and saintly figures should have edgings and/or be formed in similar fashion to a traditional grave, i.e. one with an elevated marbled/stoned boundary. This is to differentiate such graves from those of common Muslims, as the graves of scholarly and saintly figures are considered to be a place where blessings descend according to the belief of the Ahlus-Sunnah (the largest denomination of the Muslim faith). Conversely, permission is also granted for edgings around the graves of common Muslims where there is a risk of people traversing them, as has unfortunately been the case in the cemetery where Mr Ul-Haq's father is buried. The permitting of raised edgings around graves will certainly prove to be conducive in preventing anybody from stepping on them."
"There are certainly differing views of grave edgings amongst the Muslims. At one extreme there are the 'puritanical' views that there should be no markings of graves at all, despite the practices of the Prophet to use stones to identify graves. On the other hand, there are those that build grand structures over the grave and mark it out with marble and other adornments. However personally I would recommend one only do as much as is necessary and not display extravagance in the matter. Despite this, [the] practice of Muslims after the first generation has been to have graves that are clearly marked out with headstones and edgings, at a minimum, so lawn graves have been the exception rather than the rule. the four-inch edgings are the middle path between absolutely unmarked graves and extravagant mausoleums."
"In our view this is a reasonable accommodation which has not undermined the objects of the lawn cemetery."
" To allow the erection of permanent raised edgings around graves would very greatly undermine the lawn cemetery principle and the relatively uniform appearance which it produces. It would also be extremely difficult to impose limits on the forms of fencing or enclosure which people erected, who did that and what they used. Allowing this would upset a lot of people. Whilst it is predominantly Muslims who use the T section of the cemetery, that section is located such that all communities walk past it on their way through to other parts of the cemetery."
"The Islamic and civic principle of equality demands that no-one receives special treatment."
The report continued, at para. 6.3:
" We consider that a headstone, bearing the name, titles and status of the deceased, as well as grave surroundings, within permitted rules, is sufficient to recognise the status of such a person, if the family so wishes. However, this must be done in a way to avoid ostentation, to avoid disrespecting the feelings of the families of the deceased buried in neighbouring graves."
"The Muslim section of Streetly Cemetery is used by all Muslims. Other Muslim groups are firmly against raised borders, fences and built structures surrounding graves, based on the extensive Sunni Muslim jurisprudence that we detailed in our original report. To allow edgings would certainly cause upset amongst these people, who use this section of the cemetery. The traditional and established practice is for mounding the graves only, and not building structures upon them.
For example, allowing raised borders or structures around the Muslim graves in Streetly Cemetery would upset Deobandi Muslims, who are also Sunni-Hanafi-Sufi and take very strictly the Islamic prohibition against building over graves. And prominent schools of jurisprudence, such as the Maliki, Shafi'i and Hanbali Schools all have groups who are very opposed to having structures on graves, based on the authentic Prophetic hadiths that we quoted in our original report. These people would be upset by having structures over graves."
"is more likely to result in stepping onto the grave for the grass cutting, since the edgings prevent the pedestrian operated lawn mowers from being used without interruption among the graves, and would make the manoeuvring of such a mower very difficult. This will then require the workers to then have to step onto the edged graves in order to access the grass and cut it."
" again the solid edging of the grave is more likely to result in stepping onto the grave, as it affects the manoeuvring of the machinery."
"This access strip is used to traverse the rows in order to utilise other graves and to carry out maintenance tasks, including where a grave has collapsed through natural ground settlement. Visitors also use these access strips in order to visit their loved ones' graves without the need to step on the space where a body is interred."
"It would greatly affect maintenance work."
In the same paragraph he states that, following discussions with representatives of some of the Muslim communities in November 2011, the graves in the T section of Streetly Cemetery are maintained, in the main, by using hand held strimmers and, and where applicable, hand held spraying equipment. Pedestrian-based equipment such as strimmers require a minimum safe working area to operate. He states that:
"The current working space between the end of the grave and the next raft allows a working area of 14 inches (355 mm). Raised borders would reduce the effective working space for such pedestrian-based equipment and make maintenance significantly more difficult. The spacing of the graves at Streetly and its T section has been designed on the basis of it being set out as a lawn cemetery."
"Working in tight spaces invariably requires more lifting, twisting, stretching etc., all of which put additional stress on the body. Equipment held out from the body may cause the user to have to change the position of stance to maintain balance, again causing stress on the body. The addition of a 4 inch, or higher, raised edging will add a trip hazard when manoeuvring between the graves. This is likely to lead to a need to step onto or walk over graves, in contravention of our instruction to maintenance workers to not do so. Again, this arises in part because Streetly's T section was set out to be a lawn section."
"Walsall Council also has to consider the interest of visitors to the cemetery, and the accessibility of the graves. A grave site with a severely restricted walkway would impede a visitor's range of motion. The access strip would no longer be sufficient to turn, twist or bend safely. Indeed, these motions could result in a need to step directly onto the interment space in order to avoid tripping over a raised border."
(1) The Defendant consulted widely on the revision of its policy in 2016. That policy had been in place for many years before that.
(2) The Defendant has been willing to accommodate the wishes of various parts of the Muslim community, in particular by permitting mounding although not marble edging around graves. This is important not only because it shows a willingness to be flexible on the part of the Defendant authority. It has shown that it is prepared to make reasonable accommodations to its normal policy in order to assist those Muslims who wish to mark their loved ones' graves with a raised grave while maintaining the general appearance of a lawn cemetery. This point also goes to another one. It is that it helps to focus on the precise issue before the Court now. This relates to the degree of the interference with the Claimant's Article 9 rights. Although we do not belittle how he feels about the matter, it is objectively considered a relatively less serious interference than would be (for example) a decision by a public authority that a person could not have a burial in accordance with his or her religious beliefs at all. The dispute between the parties has in a sense come down to this important but relatively narrow question: how is the objective of minimising the risk of someone walking on a grave best to be achieved? Is it by a combination of methods which include mounding but not marble edging (as the Defendant contends) or is by a combination of methods which include mounding and also marble edging? In the end we do not consider that the decision of the Defendant in this regard is one which falls outside the margin of judgement afforded to it by the law.
(3) The Defendant is well placed with its experience and knowledge of the requirements of cemetery maintenance to form the judgement which it has as to the practicalities, including health and safety issues. There is evidence before this Court, from Mr Billings, that the erection of marble edging would intrude upon the space available (described as an "access strip") around a grave to enable maintenance work to be done; and that it would increase the risk of people stepping onto the grave where a person is buried. Finally, Mr Billings' evidence is that there would be an increased trip hazard because people may step onto the edging in order to avoid walking on a grave and the edging would be only four inches high. We have reached the view that such matters are essentially within the margin of judgement afforded to the local authority in this context. It has relied upon the considered view of its officer, who has 30 years' experience in the field of maintenance of cemeteries. Although Mr Fordham criticised his evidence by reference to other documents that are before the Court, we note that no evidence has been filed in response to that of Mr Billings, still less to contradict his evidence. We also note that no application was made to cross-examine him and certainly no order was made permitting such cross-examination. In those circumstances we accept Mr Billings' evidence.
(4) Legitimate distinctions do exist from the children's section of the cemetery. We return to this issue in detail below, when we address the grounds of challenge under the 2010 Act.
The discrimination claim under the 2010 Act
" an important point of equality law which must not be overlooked. It is that, in a discrimination case, what has to be justified is not only the underlying measure but the discrimination: see A v Secretary of State for the Home Department  2 AC 68, para 68 per Lord Bingham of Cornhill."
"Management of the cemeteries, and particularly the infant graves sections of the cemeteries, is one of the most sensitive areas of the Council's work. I have worked in this area for over 30 years and have extensive experience of dealing with and assisting grieving relatives following the death of a baby or infant. It is a truly terrible thing to lose a baby or infant. It goes against what we as a society consider the normal order of the life cycle. It raises in people a very acute sense of the cruelty of life, that an infant or baby, can suffer such a fate. People also invest hope for the future of their family, and the natural order of renewal, around babies and infants. That is not to say that losing adult friends or relatives is not painful. Of course it is, but where it is the death of a very young child or infant it is generally felt by the family more painfully or deeply. That child has not had the chance to live a full life and the loss is felt very acutely by the family. I would have thought that it went without saying that the loss of an infant raises a unique emotional reaction which is different to that which arises with the loss of an aging relative or indeed any adult, who has lived a full life. In saying this I am speaking from the experience of many years of dealing at close quarters with families who have experienced loss."
"It is good practice in cemetery management to adopt different, more relaxed rules and regulations in relation to infant graves, as compared to adult graves. "
"the different approach for this infant section does not undermine the overall uniformity we maintain at the Cemetery as a whole it is never an easy balance to strike. We recognise that there are competing wishes. In terms of the impact on uniformity and collective balance of interests, I cannot recall ever having had a complaint by anyone about the different appearance of the infant sections of the Cemetery. In contrast, when we have sought to take a sensitive approach and deferred enforcement in the adult sections we have received complaints from both Muslims and non-Muslims alike."
"There are also different maintenance considerations. Infant sections were originally laid out on lawned areas, however it was noted that any items that families left on the graves deteriorated quite rapidly. It was also difficult for the Council to maintain the grass. Due to the small size of these grave plots, cutting the grass around such items was extremely time consuming and sometimes resulted in damage to the items. For this reason, when the Council set up the newer of the two infant graves sections it covered the ground in a membrane layer and put down shingle. This means that the area can be easily maintained without disturbing the items left by family members."