Haq, R (On the Application Of) v Walsall Metropolitan Borough Council

A sincere religious belief is protected by Article 9 where the proposed conduct is sufficiently linked to that belief. A court should avoid adjudicating doctrinal disputes between religious authorities. The central question is ordinarily whether any interference is justified under Article 9(2).

In assessing justification, a public authority may receive a margin of judgement, particularly where it must balance conflicting religious views, equality of treatment, cemetery management, appearance, accessibility and health and safety. A policy may be lawful despite a disproportionate effect on a religious minority where reasonable accommodations are available and the policy strikes a fair balance. Different treatment of infant and adult graves may also be justified by distinct emotional, spatial and maintenance considerations.

The claimant, a practising Barelvi Muslim, challenged Walsall Metropolitan Borough Council’s cemetery policy. The policy prohibited raised edging around adult graves in lawn cemetery sections, although it permitted certain alternatives and different arrangements in infant sections.

The claimant sought permission to erect four-inch marble edging around his father’s grave. He argued that the refusal interfered with the manifestation of his religious belief under Articles 9 and 8 of the European Convention on Human Rights and amounted to direct age discrimination and indirect discrimination on grounds of religion under sections 13 and 19 of the Equality Act 2010. The central issues were whether the belief and proposed edging engaged Article 9, whether the interference was justified, and whether the differing treatment of infant graves was lawful.

Claim dismissed. The court gave a joint judgment.

1. The claimant held a sincere religious belief that people should not step on his father’s grave. The proposed marble edging was sufficiently linked to that belief and therefore constituted a manifestation of it. The court declined to resolve doctrinal disagreements within Islam.
2. The refusal interfered with Article 9. The claimant had not made a free and informed choice between cemeteries comparable to the choice considered in R (SB) v Governors of Denbigh High School [2006] UKHL 15. Burial had to take place promptly, the cemetery was local, and moving the grave was not realistically possible.
3. The interference was prescribed by law and pursued legitimate aims, including protecting the rights of others, preserving the lawn cemetery principle, and protecting visitors and maintenance workers. The policy was rationally connected to those aims.
4. Applying the proportionality questions identified in R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin), the Council acted within its margin of judgement. It had consulted on the policy, permitted mounding and flush wooden edging, and relied on experienced evidence that raised edging would impede access, maintenance and safe use of equipment and could increase the risk of people stepping on graves.
5. The Article 8 claim and indirect discrimination claim raised no materially different issue and failed for the same reasons. The direct age-discrimination claim also failed. The different treatment of infant sections was justified by their distinct emotional significance, greater available space and different maintenance arrangements.