R (Ul Haq) v Walsall Metropolitan Borough Council

The Divisional Court dismissed the claimant's judicial review challenge to the Council's cemetery rules which prohibit raised kerbstones or edging in the lawn sections. The court found that Article 9 ECHR (freedom to manifest religion) was engaged because the claimant sincerely believed that people should not step on his father’s grave and that the requested edging was sufficiently linked to that belief. However, the interference was justified under Article 9(2): the Council pursued legitimate aims (protection of the rights of others, maintaining the lawn cemetery principle and health and safety) and its measures were within its margin of judgment and proportionate.

The court also rejected the claimant's Article 8 and Equality Act 2010 (sections 13 and 19) claims. Indirect discrimination on grounds of religion failed for the same reasons as Article 9. The alleged direct discrimination by age (infant graves treated differently) was justified by objective factors (different layout, maintenance regime and the particular emotional sensitivities of infant sections).

This was a first-instance claim for judicial review by Mr Atta Ul Haq challenging Walsall Metropolitan Borough Council's "Rules and Regulations in respect of Cemeteries and Crematoria" which prohibit kerbstones or raised edging in lawn headstone sections. The claimant, a practising Barelvi Muslim, sought permission to erect a four-inch marble edging around his father’s grave to prevent people stepping on the grave, a practice he said offended his religious beliefs.

Nature of the claim / relief sought:

• An order quashing the Council's cemetery policy prohibition on raised edging; and
• An injunction preventing enforcement of that prohibition in respect of Muslim graves.

Issues before the court:

• Whether Article 9 ECHR (and Article 8) were engaged and, if so, whether any interference was justified under Article 9(2);
• Whether the policy amounted to indirect discrimination under section 19 of the Equality Act 2010 (religion or belief); and
• Whether the policy amounted to unlawful direct discrimination under section 13 of the Equality Act 2010 (age) because infant graves are treated differently.

Key factual and procedural posture: The claimant's father was buried in the Council's Muslim lawn section. The Council refused permission for raised marble edging, relying on its lawn cemetery principle and updated rules (para. 6.9(g)). Permission to bring judicial review was granted by Cheema-Grubb J. The Council relied on evidence from its Bereavement and Registration Services Manager about long-standing lawn management, maintenance practicalities and limited accommodations already provided (mounding, ground-level wooden frames, ground-level wooden edgings).

Court's reasoning: The court accepted that the claimant held a sincere religious belief that people should not step on his father’s grave and that the proposed edging was sufficiently linked to that belief (manifestation). The court nonetheless concluded that the Council's refusal interfered with that manifestation but that the interference was "prescribed by law", pursued legitimate aims (including protection of others' interests, equality of appearance and health and safety) and was proportionate. The Council's operational experience and the evidence about maintenance difficulties and trip hazards, the need to preserve a uniform lawn appearance and the sensitive, sometimes conflicting views within the Muslim community, placed the Council's decision within its margin of judgment. The Article 8 and indirect discrimination claims failed for the same reasons. The direct age discrimination claim was justified because infant sections differ objectively (layout, shingle/membrane surfacing, emotional sensitivities and maintenance issues), so the different treatment was proportionate.

The court therefore dismissed the claim for judicial review.

The claim is dismissed. The court held that Article 9 was engaged but the Council's prohibition on raised edging in lawn sections was justified under Article 9(2) because it pursued legitimate aims (protection of others, the lawn cemetery principle and health and safety), the measures were rationally connected to those aims and within the Council's margin of judgment. Article 8 and the Equality Act 2010 claims (sections 13 and 19) also failed: indirect discrimination raised the same issues as Article 9; the direct discrimination by age was justified by objective and proportionate reasons relating to the distinct nature and maintenance of infant grave sections.