This is another of the judgments the Lords gave on super-Wednesday at the end of July, and is worth a look because of the way their Lordships deal with the question of religious discrimination. It’s another stark contrast with the dog’s breakfast we saw in Ladele.
The case is about whether a Mormon temple should be exempt from business rates: it is, under Schedule 5, paragraph 11 of the Local Government Finance Act 1988, if it’s a place of public religious worship. But is it? The Valuation Office had decided not, because entry is restricted to “patrons” of the Mormon church, i.e. those recommended by a bishop as demonstrating belief in Mormon doctrine, an appropriate way of life and having made enough financial contributions.
Their Lordships agreed, relying on existing case law saying that there must be public access if a building is to count as a place of public religious worship. The really interesting point in the case, though, is the way they deal with the Mormons’ argument that the 1988 Act discriminates contrary to the article 14 Convention right in the enjoyment of the article 9 right to manifest religious beliefs.
Had the Lords taken the misconceived Ladele approach, they’d have concluded that the Mormon practice of restricting entry directly conflicts with the condition for statutory exemption, with the result that the statute discriminates directly against the Mormon church – leaving no room for the exemption to be justified. But of course the Lords didn’t do that. Lord Hoffmann didn’t seem to think there was any kind of discrimination at all, but that in any event the condition of public access was a neutral criterion not targeted at any particular religion, so that any discrimination was at most indirect. He saw any indirect discrimination here as amply justified. Lord Hope agreed, although if he’s suggesting at para. 31 that there can be no discrimination within the ambit of article 9 or article 1 of Protocol 1 because Parliament’s legislative choice was well within the discretionary area of judgment the court will allow, he’s surely wrong. I think Lord Scott’s analysis at paras. 49-51, that these facts are within the ambit of article 9, but that any indirect discrimination is, as he put it, “well justifiable”.
But you can justify direct discrimination under Article 14, can’t you?
You’re quite right, Anon – a slip of the keyboard.
My point was not that the analysis of discrimination would make a difference in the context of article 14 – it doesn’t as you say. My point was that it would have made a difference in the context of the equality legislation in issue in the Ladele case, had they adopt the correct approach taken in this case. It’s in Ladele that justification was squeezed out.
Hi, I’ve only just found your blog, via Bystander’s, but am enjoying it so far!
Thanks, Tabitha! Do keep reading – it’s terribly good for you.