Julian Rivers (Professor of Jurisprudence at the University of Bristol) responds to Adjudicator Mark Shaw’s QCs ruling that non-Christians should be able to head up the Christian Union at Exeter University.

A Student Christian Union, for the purposes of this paper, is an association of students in Higher or Further Education agreeing to meet for purposes of Christian worship, prayer, teaching, evangelism, friendship and social action. It does not conceive of itself as a church, but as a student-led association of Christian students, who set aside denominational differences for the sake of Christian unity. Typically, its meetings are open to all interested persons, although it will normally impose a test, or tests, of religious belief for its members and officers, understanding itself as a union of Christians. It will normally be affiliated to the Universities and Colleges Christian Fellowship, a charitable organisation founded in 1928 as a federal body to assist student Christian Unions across the United Kingdom. It generally also seeks and enjoys recognition and affiliation to the relevant university Student Union or equivalent body. This both facilitates, in practical respects, its existence on campus and maintains a presence in the ‘public square’ of the student body. Christian Unions still represent some of the oldest and largest student societies in the country.

The history of the development of student Christian Unions during the 20^th century is relevant to the understanding of current difficulties. During the 19^th century, informal student Christian groups emerged in the universities, most notably in Cambridge, where the Cambridge Inter-Collegiate Christian Union (CICCU) was founded in 1877.[1] Towards the end of the 19^th century, a number of growing student movements coalesced to become what in 1905 was renamed the Student Christian Movement (SCM). In the early decades of the 20^th century, the SCM became deeply divided, and was eventually dominated by more liberal theologies, which denied traditional Christian beliefs. Most notably, in 1910, the SCM changed its statement of belief no longer to require belief in the deity of Jesus Christ. The CICCU – wishing to maintain a more traditional stance – disaffiliated. In 1912, the London Inter-Hospital (later, Inter-Faculty) Christian Union was founded, to be followed by similar groups at Universities across the UK, including a re-lauch of the Oxford Inter-Collegiate Christian Union.

In 1919 the first ‘Intervarsity Conference’ was held between the Christian Unions, with a view to upholding a more traditional understanding of Christian belief and out of a concern that the SCM was losing its religious identity and would not survive. In 1928 the inevitable formal split from the SCM finally occurred, with the formation of the Intervarsity Fellowship of Evangelical Unions between four Scots, three Irish, one Welsh and eight English CUs. Affiliation was open to all university Christian Unions who were in agreement with a ‘doctrinal basis’ or statement of belief. This doctrinal basis was an attempt to state the central truths about God historically maintained by Christians.[2] Leaders were expected to assent to the doctrinal basis, and members were asked to assent to a much briefer statement that they accepted Jesus Christ as their Saviour, Lord and God. The IVF was renamed the UCCF in 1975, and the prognosis of its founders about the demise of the SCM has largely been realised. Since 1928 the doctrinal basis has proved a valuable means of bridging denominational differences between Christians while upholding beliefs that many Christians across the world consider central to their faith.[3] Today there are (on a conservative estimate) about 15,000 students involved in over 200 Christian Unions in the UK. The CU movement has also become global, with similar student movements and organisations in almost every country in the world.[4]

In recent years, some Christian Unions have experienced difficulties on campus. They have been excluded from university premises and prevented from advertising their meetings. In some cases their assets have been seized. Many of the difficulties are related to their affiliation to a Student Union. The SU may seek to impose conditions of affiliation incompatible with the identity of a CU as a society of Christians united around the doctrinal basis, and then disaffiliate the society as a penalty. Sometimes these conditions are associated with equal opportunities policies drafted or interpreted in a way that is incompatible with some aspect of the CU’s constitution. In particular it is sometimes thought that non-discrimination on grounds of religion requires religious societies to be open to all as members or leaders, regardless of belief.  Difficulties have also arisen as a result of unpopular ethical views espoused by members of the CU, particularly in the area of sexual ethics. These disputes are often resolved informally, or are quickly overtaken by the annual turnover of student leadership. As a result, low-level harassment can continue largely unchecked. At the same time, it must be acknowledged that many CUs and SUs still enjoy excellent relationships.

During 2006-2007 one particular dispute, between the Christian Union and Student Guild of the University of Exeter, became particularly intractable, resulting in the commencement of legal action by the Christian Union, and an internal University hearing conducted by Mark Shaw QC on behalf of the University. The dispute was triggered by the actions of one student in persuading the Guild to require the CU to change its name to ‘Evangelical Christian Union’ against its own will, and focused on the requirement of the Guild’s Equal Opportunities Policy that no affiliated society could discriminate on grounds of religion. This rendered the traditional requirement that members and leaders sign a declaration of belief impermissible. In the course of his ruling, Shaw set out a number of legal propositions which taken together had the effect of preserving to the Student Guild the largest possible discretion in its regulation of affiliated societies, and of strictly limiting the responsibility of the University for the use the Guild might make of its discretion. Assuming that the Guild had followed its own internal processes correctly, there were no substantive legal limits on its right to require an affiliated society to change its name or to require societies to admit all students, regardless of faith, into membership or leadership, or to deny to a society that refused to comply with these requirements access to rooms, funds or publicity administered by the Guild.

More specifically, Mark Shaw’s ruling contains, or implies, the following propositions which are at best in need of qualification, and at worst significantly mistaken:

• a students’ union is a voluntary association in essence identical to one of its affiliated societies;[5]
• the function of a students’ union is not a public one for the purposes of the Human Rights Act 1998;[6]
• the fact that a students’ union is neither a public authority nor exercises public functions for the purposes of the Human Rights Act 1998 means that it is not unlawful for it to violate a student’s human rights;[7]
• the disaffiliation of a Christian union would not impinge on any Convention rights;[8]
• external restrictions on a religious society’s criteria for leadership are less invasive of freedom of religion and association rights than restrictions on criteria for membership;[9]
• to require a religious society to change its name against its will may be unwise, but it is not unlawful. There is no ground for thinking that the society’s right to choose its own name is protected under the European Convention on Human Rights;[10]
• there is no absolute right to practise one’s religion only with those who share the same level of commitment;[11]
• an Equal Opportunities Policy that prevents a religious test for members of religious societies strikes a fair balance between the relevant interests;[12]
• an Equal Opportunities Policy cannot breach art. 14 ECHR (non-discrimination in the enjoyment of Convention rights) since they both aim at the same thing: equality;[13]
• a commitment to equality requires open membership and leadership of religious societies;[14]
• a students’ union is not part of a university, so its acts cannot be attributed to the university;[15]
• the university’s supervisory duties under s. 22 Education Act 1994 are satisfied once it has approved an acceptable students’ union constitution. Within its constitution, the student union is autonomous;[16]
• the duty of a university to secure equivalent services for non-members of a students’ union simply refers to the university’s services, not the students’ union’s services;[17] 
• internal complaints procedures must be satisfied before recourse is had to the courts;[18]
• the Employment Equality (Religion or Belief) Regulations do not apply.[19]

Of course, if Mark Shaw QC is correct in his statement of the relevant law, this does not prevent a students’ union from continuing to recognise and affiliate a CU on its traditional basis. The CU will simply be vulnerable to a hostile SU. However, the ruling also contains a highly contentious opinion on the requirements of equality and non-discrimination in this context, which, if correct, would tend to encourage students’ unions to make leadership and membership regardless of belief a condition of affiliation.

The law of higher education is complex. Universities are to a substantial degree autonomous and have their own distinctive internal rule-structures. This requires sensistivity to the governing instruments in each case. They straddle the public-private divide, and thus may exercise both public and private functions. In particular, this makes the application of human rights standards problematic. However, it is suggested that Shaw substantially misdirected himself as to the relevant law, and that students’ unions are not as unconstrained in their regulation of student religious societies as he argues.

Student religious societies have the legal right to require members and leaders to affirm a particular faith or set of religious doctrines, to adopt a name that expresses their sense of identity and to be treated equally as a society by the student union in receiving a proportionate share of  resources and access to premises and publicity. While students’ unions also have a legally protected interest in regulating their own affairs and adopting policies for the conduct of affiliated societies, these interests are balanced by those of the affiliated societies. In particular, equal opportunities policies must be drafted and interpreted in a way that is not destructive of the identity and liberty of affiliated student groups. Universities generally have a legal duty of oversight to ensure that associated students’ unions respect the rights of their members, including the rights of members in their capacity as members and leaders of a religious society.

The argument of this paper is therefore that the position that many Christian Unions currently enjoy in practice is not simply granted by a students’ union as a matter of discretion; it is legally protected as a position enjoyed by all religious societies, and it is the university’s legal responsibility to ensure that it is respected. This is not only good law, it is also good policy, in that it mirrors the way that society as a whole balances the requirements of liberty, equality and diversity, preserves peace, and prevents oppression.

It follows that the University of Exeter and its Guild of Students will act unlawfully if they subject the Exeter Christian Union to the costs of disaffiliation as the price to pay for the exercise of their right to choose their own name and the right to require members and leaders to affirm their agreement with a declaration of belief.

The law can best be understood by setting out a series of relevant questions, the answers to which will lead to the position set out above. The questions seek to establish the specific legal position of students, student unions and universities first, before bringing human rights obligations to bear on that specific legal position. The questions are:

(1)   What relevant legal constraints are students’ unions and universities subject to?

(2)   What is the legal relationship between a university and its students’ union?

(3)   How are the relevant legal constraints to be enforced?

(4)   What are the requirements of employment equality legislation in respect of religious and other groups?

(5)   To what extent are private associations, including universities, students’ unions and religious societies bound by human rights?

(6)   What are the human rights of student religious associations, including Christian Unions?

(7)   What are the broader considerations of the nature of democracy and diversity to be borne in mind?

(8)   What necessary and proportionate limitations may students’ unions subject student religious societies to?

1. The relevant legal constraints on Students’
Unions and Universities

It is generally assumed that the relationship between a student and their Union is contractual and private, since, it is assumed, the union is an association separate from the university. Unlike a university, which is incorporated by charter or statute, a students’ union is almost always unincorporated. The general assumption of separate personality is not unproblematic, and will be considered in greater detail below. Even as a separate unincorporated association, members have rights to enforce the terms of the contract of association, in particular to ensure that established procedures are followed.[20] Furthermore, students’ unions are educational charitable associations, since they share the broad educational objectives of their university.[21] They are therefore subject to the constraints of charity law, in particular the prohibition on political campaigning.[22] The charitable nature of students’ unions has also recently become problematic, as a result of changes in the requirements of registration with the Charity Commissioners. Students’ unions may no longer be able to ‘shelter’ under a University’s legal exemption from the requirement to register. But on the basis of this purely private conception of a students’ union, there would appear to be no reason why the educational charitable purposes a students’ union adopts should not have a religious character. To give a specific example, not entirely implausible, if the general assumption is correct, a union could by constitutional amendment resolve to become an Islamic Union. 

However, students’ unions are also indirectly subject to further constraints as a result of statutory obligations imposed on universities in respect of their activities.

A basic statutory framework is contained in Part II (ss. 20-22) of the Education Act 1994. This defines a students union for the purposes of the Act as

(a) an association of the generality of students at an establishment to which this Part applies whose principal purposes include promoting the general interests of its members as students; or
(b) a representative body (whether an association or not) whose principal purposes include representing the generality of students at an establishment to which this Part applies in academic, disciplinary or other matters relating to the government of the establishment.

It includes equivalent bodies in respect only of undergraduate or postgraduate students, or in relation to a specific hall of residence, and to broader bodies serving more than one higher education establishment. However, it does not cover national representative bodies such as the National Union of Students. Nor does it include individual clubs and societies. Broadly speaking, section 21 defines the relevant establishments as all those receiving Government funding in respect of higher or further education.

Section 22 sets out the substantive constraints on students’ unions. Sub-section (1) creates a general obligation on universities and colleges to ‘take such steps as are reasonably practicable to secure that any students' union for students at the establishment operates in a fair and democratic manner and is accountable for its finances.’ Sub-section (1) is significant, in that the phrase ‘fair and democratic’ presumably implies not only the existence of majoritarian decision-taking processes, but also protection for the rights of unpopular minorities, without which a democratic community cannot survive. It is also not limited to the adoption of a constitution. For example, it would be hard to accept that a procedurally correct resolution to deny funding to all Christian societies, or all religious societies, would be ‘fair and democratic’. The correct construction of s. 22(1) is central to the legal rights of religious societies.

Sub-section (2) sets out a series of more specific obligations. Sub-section (2)(i) requires the procedure for allocating resources to groups and clubs to be fair, set down in writing and freely accessible to all students. Presumably the allocation of resources embraces both financial resources and the access to premises and publicity, and presence at freshers’ fairs and such like. It must also include the process for recognising clubs and societies where that is a pre-requisite to the allocation of these resources.

Sub-section 2(m) requires the existence of a University internal and independent complaints procedure for those dissatisfied with their dealings with the Union. Sub-section (2)(n) requires complaints to be dealt with promptly and fairly and the provision of an effective remedy if the complaint is upheld. Sub-sections (3) and (4) require universities and colleges to maintain and publish annually a code of practice setting out how the requirements are to be carried into effect and enforced.

Sub-section 22(c) gives individual students the right not to be a member of the union, and the right not to be unfairly disadvantaged with regard to the provision of services or otherwise by their having exercised those rights. Universities and colleges are required to remind students of this right, and to set out in the code of practice how equivalent provision is to be secured.[23] The wording of s. 22(5)(b) makes it abundantly clear that the ‘services’ referred to are those of the union, not those of the university. It would appear that hardly any students have ever exercised this right,[24] but some universities satisfy this obligation by ensuring that students have access to students’ union resources, including membership of clubs and societies, regardless of their membership of the union.

Further constraints in respect of institutions in England and Wales are included in the Education (no.2) Act 1986. This imposes a general duty on universities to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.[25] In particular, the use of premises is not to be denied on any ground connected with the belief, views, policy or objectives of the individual or body concerned.[26] The duty extends not only to meetings and other activities taking place on the university’s premises, but also to the premises a students' union connected to the university, where these are not the university’s premises.[27] Judicial review of the refusal of Liverpool University to allow a right-wing speaker to use university premises was granted on the grounds that the university had taken into account public order implications outside the precincts, and that this consideration was irrelevant. Conditions restricting publicity and admission were, however, warranted in the light of the circumstances.[28]  

Neither statute is clear on how a university is supposed to exercise effective control over a separate unincorporated association. Presumably this is left to informal pressure and the threat of a withdrawal of financial support. This raises the question of the precise nature of the relationship between the two bodies.

2. The legal relationship between a university and
its students’ union

A students’ union is an association, almost always unincorporated, of members who may happen to be students at one University, occupying premises which happen to be made available by that University, and expending funds which happen to be granted by the University, for educational charitable purposes which happen to be related to those of the University, and which happen to be outlined in the university’s prospectuses. In spite of all these connections, it is generally assumed that a students’ union is a separate entity, and not part of the university.

The very close practical relationship between many students’ unions and universities at least raises a question about the general assumption of separate identity. It is common in both pre- and post-92 institutions to find references to the Union in the statutes and ordinances.[29] The University of Bristol, for example, includes the power to establish a Union in its Charter. Statute 27 establishes the Union, by stating that ‘there shall be a Union of students in the University’, and Ordinance 24 sets out its basic constitution in some detail. The General Manager is appointed by the University Council in collaboration with the Student Council, as are the Financial and Legal Advisors, who have reporting responsibilities to the University Treasurer and University Council respectively. The union serves the overall educational mission of the university, in some cases quite explicitly by cooperating in areas such as transferable skills development, pastoral support and careers advice. Students are also given the right to benefit from union services regardless of their formal membership of the union.

In this type of arrangement, while the students are given autonomy to arrange their affairs within the confines of the statute, charter and ordinances, and where there is considerable financial and proprietory dependence of the Union on the University, it is hard to see why the Union should be treated as anything other than a branch of the University itself. Academic faculties and Departments also enjoy considerable autonomy within the University’s constitutional framework, and yet no-one would consider treating them as separate partnerships or associations. In this type of arrangement, the assumption that the students’ union is not part of the university looks strange. 

Nevertheless, the assumption of separate entity status is reflected in the case-law. Separate identity was found to exist in the case of Thames Valley University by Sedley J.[30] The Thames Valley Students’ Union was unusual in being unconnected to the University’s internal structure. In the Anyanwu case,[31] which turned on whether the South Bank University Union had discriminated on racial grounds in dismissing from employment sabbatical officers who had been expelled from the University, it was assumed throughout that the Union and the University were separate bodies. The fullest discussion can be found in the decision of the Court of Appeal that the University of Leicester Students’ Union did not benefit from the VAT exemption of the University. The court found that it was not part of the University but a separate entity.[32] Much of the reasoning is directed to showing that certain forms of connection do not imply the incorportation of the union in the university. The determining factor for the court seems to have been that the language of the university’s charter, statutes and ordinances tended to refer to the relationship between ‘the university’ and ‘the union’, which implies their separate identity in a relationship of oversight. In addition, there are undoubtedly examples of students’ unions which do occupy their own premises, and which serve more than one university or college, and which must be seen as separate organisations.

There can be no doubt that students’ unions do enjoy a certain autonomy. But one wonders whether the Court of Appeal did not place too much weight on what may only be a convenient matter of drafting in articulating the relationship between the union and the university’s general governing bodies. Once again, to draw on the example of the University of Bristol, the relevant Ordinance deals for the most part with the relationship between the ‘Union’ and the ‘University Council’, which would satisfy the expectation of the Court of Appeal if it were part of the University. By contrast, the University of Exeter’s statutes and ordinances are less clear.

It is thus arguable that, at least in some cases of substantial integration, and depending on the precise wording of the Charter, Statutes and Ordinances, that the university is already potentially liable when the students’ union acts in breach of s. 22. However, in the more normal case in which the students’ union is not part of the university, the university will only have breached its obligations once it fails to take supervisory action to remedy the breach by the union.

3. The enforcement of the statutory obligations

Perhaps the most complex aspect of this area of law is the question of the enforcement  of the statutory obligations. In failing to uphold the statutory obligations, is a university exercising a ‘public function’ in the sense that it renders itself liable to judicial review,[33] or are the obligations ‘private’ in the sense that they are implied into a contract of membership of the students’ union, or a contract to educate entered into by the university?

It is assumed in the leading text on higher education law that failure by the University to fulfil its statutory duty under s. 22 Education Act 1994 could be remedied by way of judicial review,[34] although there are no examples in the reported cases. As we have already seen, there is one example of the use of judicial review to enforce s. 43 Education (no. 2) Act 1986. If, as has been suggested above, there are universities in which the students’ union is properly to be treated a part of the university, then the university becomes automatically liable for the breach of the statutory obligations by its students’ union. But in accordance with the general principle that a dispute is not ripe for judicial consideration until the internal university process has run its course,[35] a legal remedy will not be available until the internal inquiry required by section 22(2)(m) – unless delay renders it ineffective in accordance with section 22(2)(n).

However, if a students’ union is a separate unincorporated association, as is generally assumed, the terms of section 22 are presumably implied into the contract of association and may be enforced as a matter of private right. This was the conclusion of Sedley J in denying the availability of judicial review to challenge acts of the Thames Valley Students’ Union in In R v Thames Valley Students Union ex parte Ogilvy.[36] It has the awkward consequence that one must contemplate the possibility of parallel actions in respect of what is essentially the same decision. It would also follow that a student does not have to wait until the internal university review of the decision is complete, since they would have a contractual right against an independent entity (the students’ union) not to be treated in an ‘unfair’ or ‘undemocratic’ manner. In order for a students’ union to require an aggrieved member to use the University’s internal complaints procedure before seeking legal redress, an appropriate provision would have to appear in the union’s constitution.  

So far, it has been assumed that, regardless of action directly against the students’ union, one could ultimately seek judicial review of the university’s failure to remedy breaches of statutory obligation by the students’ unions. Even this may not be correct.  

Judicial review is normal in the case of statutory (typically post-92) universities.[37] On the other hand, the use of judicial review to enforce the statutory obligations imposed on all universities by s. 22 Education Act 1994 may be exceptional, or even incorrect, in the case of chartered universities. The matter is one of considerable complexity. The older universities tend to have Royal Charters granted by the Privy Council, with changes to their ‘statutes’ being made by private Act of Parliament. The jurisdiction of the courts is limited by the existence of visitorial jurisdiction which grants the institution in question a substantial autonomy in self-regulation.[38]

Farrington and Palfreyman are surely right to point out that the recent abolition of the jurisdiction of the Visitor in respect of student complaints, and its replacement by the Office of the Independent Adjudicator, does not in itself suggest the increased availability of judicial review. The Office of the Independent Adjudicator has jurisdiction in all cases of student complaints about the acts or omissions of their university.[39] It cannot deal with admissions matters, matters of academic judgment, employment matters, and disputes subject to court proceedings. It also declines jurisdiction in the case of complaints about a students’ union, unless the university is itself implicated. Given the complexity of the relationship between students’ unions and universities, it may be that it could and should entertain a properly articulated complaint. It is itself presumably subject to judicial review, but it is not clear that judicial review is excluded until it has determined (or refused to determine) a complaint within its jurisdiction. Given these multiple uncertainties, it is presumably safe to conclude that legal remedies in respect of a student union’s unlawful action towards a student society are unaffected by an approach to the OIA.

Apart from the establishment of the OIA, there appear to be two tendencies in the case-law. One is to move ‘from status to contract’ with the student’s basic legal position being governed by the terms of the contract into which they enter when they register as a student. In R (Heather) v Leonard Cheshire (2002) the Court of Appeal ruled that the provision of sheltered accommodation by a charity on behalf of a local authority was not a ‘public function’ for the purposes of the Human Rights Act 1998. Presumably the provision of accommodation by a university in a hall of residence may be similarly treated. In R (Evans) v University of Cambridge[40] the court relied on Leonard Cheshire to hold that employment disputes were essentially private and a matter of contract. A failure by a university to provide the educational experience promised in the prospectus could amount simply to a breach of contract. There can be no doubt that there is a contract to educate, even in the case of statutory universities.[41]

On the other hand, there are examples of the increasing use of judicial review, even outside the scope of the statutory universities. In R (Persaud) v University of Cambridge,[42] the Court of Appeal accepted that the Board of Graduate Studies was under a public law duty of fairness in investigating the progress of a PhD student. In R (Evans) v University of Cambridge, it was suggested in reliance on Clarke v University of Lincolnshire that the investigation of an allegation of plagiarism in an examination would be a ‘public’ matter. In R (Jemchi) v Visitor of Brunel University,[43] it was held that the duty of fairness imposed on a visitor in upholding a decision that the applicant had failed his PGCE did not require an oral hearing. There is now a complex interaction going on in the case-law between the availability for judicial review as a remedy for students, and the need to determine ‘public function’ for human rights purposes. The tests are, of course, overlapping but not identical.

It may be that the law is moving towards a distinction between a public and a private dimension to higher education, at least as far as procedure is concerned. The former would embrace the award of degrees and the conduct of assessment and progress decisions leading to the final award, whereas the latter would embrace the educational opportunities and experience offered to the student by way of preparation. One could then argue that the conditions under which student religious societies operate are part of the broader educational experience of the students, not part of the public function of validating and awarding degrees. On the other hand, it might be that the whole educational ‘package’ could be seen as the fulfilment of a public function for purposes of judicial review. Or, on the other hand, Dennis Farrington and David Palfreyman may be right that there is a fundamental distinction between public (statutory) and private (chartered) universities.[44] In the case of the latter, the source of the student’s rights is in contract only. If this is correct, one could argue that the requirements of section 22 Education Act 1994 are to be treated as implied terms in the contract to educate, just as they are implied into the contract of association which establishes the students’ union. To add to the complexity, it will be suggested below that recent European Court case-law suggests that the whole higher education ‘package’ is a public matter of state responsibility.

Public lawyers have long bemoaned the frustrations and potential risks of ‘procedural exclusivity’. In practice, the courts have been fairly generous in allowing cases reasonably commenced under one procedure to be transferred to another.[45] Increasingly there is little difference in the nature of the obligations implied under a contractual or public duty of fairness; the difference only affects the remedies available.[46] The terms of section 22 Education Act 1994 remain central, whether they represent the implied terms of a contract or a public duty resting on universities. This is an area in which the proper use of judicial review or contract is exceptionally obscure, and to seek to enforce the obligations contained in s. 22 in the first instance at least by way of judicial review, even against chartered universities, is not unreasonable.

4. The requirements of non-discrimination

It may be that rather than seeking to rely on s. 22 Education Act 1994, a student religious society which has been deregistered and denied access to resources could bring a religious discrimination claim under the Employment Equality (Religion or Belief) Regulations 2003, SI 1660/2003. Regulation 20 states that:

(1)     It is unlawful, in relation to an educational establishment to which this regulation applies, for the governing body of that establishment to discriminate against a person- …
 (c) where he is a student of the establishment-
(i) in the way it affords him access to any benefits,
(ii) by refusing or deliberately not affording him access to them, …

We have already seen that the assumption that the governing body of a university is not liable for the acts of its associated students’ union may be mistaken in the case of a university in which the students’ union is established by its constitutional documents. One could also argue that in the light of the obligations contained in s. 22 Education Act 1994, the university is ultimately responsible for the denial of the benefits of student union affiliation: if it fails to redress the discriminatory denial of a benefit by a students’union, it has discriminated in the way it affords the student access to those benefits. While the phrase ‘any benefits’ must relate in the first instance to access to the formal education which is related to the student’s programme of study, the right to form and join a student society is more broadly ‘educational’, developing similar or complementary skills, and offering employment as well as personal advantages. If a university took no action when a student who was simply prevented from joining the relevant students’ union or any of its affiliated societies because he or she was (e.g.) a Sikh, the student might well have a case under the Regulations as a directly discriminatory denial of benefits. A resolution passed by a students’ union not to affiliate any Islamic groups would be similarly directly discriminatory. 

The adoption by a students’ union of a policy which prevents an affiliated religious group from having a restricted membership, or promoting their faith, or adopting certain ethical views, or calling themselves what they please, is potentially indirectly discriminatory. The uniform policy is equally applicable to all groups, but it places those religious students who wish to associate on an incompatible basis at a disadvantage. Whether this disadvantage can be justified turns on arguments of legitimacy and proportionality identical to those more generally applicable in human rights reasoning, and can be considered alongside the human rights argument below. At this stage it is simply worth pointing out that such a policy would have to be uniformly applied to be even potentially justifiable. A students’ union that permitted a selective Jewish society but prohibited a selective Christian society would be discriminating unlawfully.

A claim that the university has discriminated on grounds of religion contrary to the Regulations is distinctive in this respect: it should be brought in the county court, and there is no requirement to exhaust internal remedies first.

5. Horizontal Effect

Human rights are first and foremost rights held by individuals against the State. It was oppression by Governments in the mid-20^th century which led to their articulation and enforcement. At the same time, and increasingly after its ground-breaking decision in X & Y v Netherlands,[47] the European Court of Human Rights has recognised that human rights are potentially relevant to every relationship, whether public or private, and that States are under ‘positive’ obligation to ‘secure’ them from private violations as well.[48] This means that States can attract liability in international law for failing adequately to protect individuals from non-State actors. Thus, for example, the ‘right to life’ is not only a right against the State qua executive or public body; it is also an interest which is relevant to private relationships as well, and which has implications for the legal structuring of, and institutional response to, death threats from private individuals[49] and euthanasia.[50] To take another example more obviously applicable in a private relationship, the right to privacy is one which the state may breach by unauthorised surveillance, but it may also be found in breach by failing to maintain a system of private law that permits actions for breaches of confidence by newspapers. It is entirely possible for the definition of a criminal offence, or for that matter the extent of a private law cause of action, to be affected by the relevant human rights at stake. Although some rights, such as the right to a fair trial and the right to vote, can only be satisfied by state actors, many human rights under the European Convention impose positive obligations on the state to structure private relationships in a certain way. Thus the European Court has found violations in cases in which a state has failed to secure freedom of religion, freedom of expression and freedom of association from threats by non-state actors.[51] 

However, even if members of student religious societies have relevant human rights to establish a society on their chosen terms and to be treated equally (and they do), it does not automatically follow that universities or students’ unions are legally obligated under English law to respect those rights. ‘Horizontal effect’ is the term widely given to the domestic legal obligations imposed on non-state actors to respect the human rights of other private individuals. There is a close connection between horizontal effect and the positive obligations of states to ‘secure’ Convention rights within their territory, in that one obvious way of fulfilling a positive obligation is to ensure that the content of private law rights and obligations are appropriate.

When the Human Right Act 1998 was passed, there was no need for the state’s positive obligations to be satisfied by the introduction of any new mode of interaction between human rights and the private law. It is entirely possible for a state to satisfy its positive obligations through legislative change, and the courts could have (for practical purposes) ignored Convention rights in private law cases. However, in spite of a minority view in the academic literature that this was precisely what the Human Rights Act 1998 did,[52] the overwhelming majority of commentators,[53] and a growing body of case-law, confirm that there is indeed a horizontal effect of Convention rights internally in the English legal system.

There are three dimensions to the problem of horizontal effect. First, there is a formal aspect: European Convention rights under the Human Rights Act 1998 are not in any simple sense rights under English law. They are identified and then brought to bear on English law in a variety of ways. The language of direct and indirect effect is often used in this context to distinguish situations in which a public body is simply obliged not to breach an individual’s rights (direct effect) and situations in which the rights inform the interpretation or development of other legal obligations (indirect effect). Secondly, there is a remedial dimension. In the case of direct, vertical, effect, human rights can be brought to bear on governmental bodies straightforwardly in the course of judicial review proceedings. Where one is dealing with non-governmental bodies, judicial review may not be available, and yet human rights may still impose obligations requiring enforcement. How is this to be achieved? Finally, there is a substantive aspect. Even if a private body is in principle required to respect the human rights of another, they are also beneficiaries of rights, or may pursue lawful interests, which might be in tension with those rights. How is that tension to be resolved?

Section 6 Human Rights Act 1998 imposes a straightforward direct obligation on public authorities to respect Convention rights. This is its ‘vertical’ effect. As regards the formal aspect of horizontal effect, the Human Rights Act 1998 offers four further routes: (a) A body that is not a public authority may nonetheless exercise a public function as a public-private hybrid, and in the exercise of that public function it is obligated to respect human rights (s. 6(3)(b)) – one could argue whether this is truly horizontal effect or simply another dimension of vertical effect; (b) A private body may be subject to statutory obligations which are to be interpreted so far as it is possible to do so to protect human rights (s. 3(1)); (c) Courts are public authorities, and in their interpretation and development of the law, including the private law, they are under obligation to respect the parties’ human rights (ss. 6(1) and 6(3)(a)); (d) If a court cannot interpret and apply the law so as to respect the parties’ human rights on account of primary legislation that is incompatible with human rights, they are to make a declaration of incompatibility, which enables the Government to initiate a fast-track process of legislative change (s. 4). By this last means, the private law will protect human rights, but by a process of formal legislative change rather than statutory interpretation or incremental judicial change.

Universities are not themselves core public authorities, not being part of the apparatus of Government. They are autonomous educational institutions, just as the Church of England, although ‘established by law’, is an autonomous religious institution, capable of being itself a victim of human rights breaches by the State. This must be true even in the case of the statutory universities. The arguments accepted by the House of Lords in Aston Cantlow in the case of the Church of England apply mutatis mutandis to universities as well.[54] If universities are not core public authorities, still less are students’ unions.

However, it is arguable that a university, and even a students’ union, exercises public functions for the purposes of the Human Rights Act 1998, and is thus a hybrid public authority. The test of ‘public function’ for these purposes is not identical with that used to determine the availability of judicial review. In the case of compulsory school education, the European Court of Human Rights has held that the entire educational process is ‘public’ so as to attract state responsibility for breaches of human rights even on the part of independent schools, whose relationship with parents and pupils is, of course, primarily rooted in contract. In Costello-Roberts v United Kingdom [55] the ECtHR reasoned that the state was liable for the acts of a private headmaster because it had an obligation to secure the right to education, independent and state schools were parallel and equivalent institutions, and that in general one could not absolve oneself from a responsibility by delegation to a private individual.[56] The significance of this case is that it is not one of positive obligation. The state is simply, one might say vicariously, liable for the violations of a ‘private’ actor. The existence of a right to education in article 2, First Protocol, ECHR is key here. In Leyla Sahin v Turkey[57] it is not entirely clear whether the state was potentially in breach of the applicant’s article 9 rights because it had failed to provide a remedy for the university’s ban on headscarfs (positive obligation), or whether it was in breach simply by virtue of the ban (since higher education is a state function). The judgment focuses on whether the ban was ‘prescribed by law’ and ‘necessary in a democratic society’. It rather assumes without argument that the ban infringed the student’s human rights. What is clear, is that the right to access an existing institution of higher education is a Convention right, and the state may be in violation of that right if access is denied on an arbitrary basis.[58] Thus from the perspective of the European Court of Human Rights, education – even higher education, which includes the broader educational purposes of a students’ union – seems to be an area of state responsibility. It is a public function. It must be delivered in a way that directly respects the human rights of students.

However, the emerging domestic case-law, noted above, seems to be drawing a distinction between public and private aspects of the University’s activity. The admission of students to degrees, the satisfaction of criteria for the award of degrees, including the conduct of examinations and investigation of misconduct, and the award of degrees are public matters; the employment of staff, the provision of lectures and classes, the availability of accommodation and other recreational facilities are private matters, in which any impact of human rights is only indirect. After all, anyone can set up a private college to provide higher education – what one cannot do without governmental assistance is award degrees. If this is correct, a fortiori, the provision by a students’ union of facilities for student socities does not fulfil a public function for the purposes of s. 6(3)(b) HRA 1998, but is a private matter. The point is, however, still arguable.

If it is not direct, any impact of human rights is indirect through the medium of the obligation to interpret statute compatibly with human rights, and the obligation to develop and apply the law in a way that protects the human rights of parties. Although the limits of indirect horizontal effect are not yet clear, the case-law of recent years affords several examples of the ways in which the courts have regulated and moulded private law relationships to give adequate protection to the parties’ human rights. 

The largest area of activity has been in the protection of privacy rights against media intrusion, by the development of existing private law causes of action (principally breach of confidence) to protect the interests recognised under article 8 ECHR.[59] In Campbell v MGN,[60] the House of Lords agreed that article 8 rights to privacy had to be balanced by article 10 rights to freedom of expression, and held (by a majority of 3-2) that the claimant’s rights had been infringed in the publication of photographs taken without her consent. As Lord Hoffmann stated,

What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person. There may of course be justifications for the publication of private information by private persons which would not be available to the state - I have particularly in mind the position of the media, to which I shall return in a moment - but I can see no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification. Nor, it appears, have any of the other judges who have considered the matter.[61]

The route by which article 8 privacy rights are brought to bear on private actors is the obligation on courts as public authorities under section 6 HRA 1998 in their judicial development of the law. This had resulted in a ‘shift in the centre of gravity’ of the action for breach of confidence.

In Wilson v First County Trust,[62] the central substantive question arising was whether the complete ban on the enforceability of a loan agreement which incorrectly stated the amount of credit contained in s. 127(3) Consumer Credit Act 1974 was compatible with the European Convention. The Court of Appeal held that it was not, and since the statute could not be read in a way which was compatible, issued a declaration of incompatibility. The House of Lords reversed, on the grounds (a) that the HRA 1998 had no retrospective effect on arrangements entered into before it came into force and (b) that in any case the interference with creditor’s property rights was justified. The case was decided as if it involved state interference with existing property rights, and thus a question of vertical effect, but this is misleading. It involved a legislative adjustment of private law rights to the detriment of creditors and benefit of debtors. It therefore also had consequences for the availability of private legal remedies to enforce the terms of a loan contract. The right that the Convention (arguably) protected was a right to recover the loan from the debtor. In that sense, the article 1 First protocol right to property has a horizontal effect. The state must in general provide a means of recovering one’s property from other private individuals, or justify limiting it, and thus the scope of one’s private legal remedies is affected by the scope of the underlying Convention right.

In Ghaidan v Godin-Mendoza,[63] the impact of horizontal effect was clear and significant. A majority of the House of Lords engaged in a broad interpretation of the statutory phrase ‘living with the original tenant as his or her wife or husband’ to require a private landlord not to discriminate between heterosexual and homosexual cohabitees in the grant of a statutory tendency. The surving homosexual partner had a right deriving from art. 14 in conjunction with art. 8 not to be discriminated against in respect of his right to a home. This obviously imposes hitherto unidentified obligations on a landlord under the Rent Act 1977 as interpreted compatibly with the European Convention.

It is suggested that the general position of the English legal system as regards horizontal effect was correctly summarised by Mummery LJ in a case involving unfair dismissal by a private employer under the Employment Rights Act 1996.[64] This may be reduced to the following propositions:

(1)   A private body is not under obligations under s. 6 Human Rights Act 1998, and there is therefore no corresponding cause of action under s.7.

(2)   The correct cause of action is the existing private law one, in this case the action for unfair dismissal under s. 94 Employment Rights Act 1996.

(3)   Section 3 Human Rights Act 1998 imposes a strong obligation to interpret all statutes, whether they affect public or private bodies, compatibly with Convention rights.

(4)    The effect of s.6 is to reinforce that interpretative obligation, since courts are themselves public authorities. This applies especially where the European Court has identified a positive obligation to protect.

(5)   Human-rights-compatible interpretation is not difficult where the courts are dealing with broad statutory terms such as ‘fair’ or ‘reasonable’.

This means that the Convention rights and the associated case-law of the European Court must be read not simply as attempts to identify the obligations of states, but as articulating the ‘something worth protecting’ of human rights. In short, even if students and student societies have no direct cause of action against a students’ union or a university for a breach of Convention rights, on the grounds that the educational advantage offered is a ‘public function’ in the relevant sense, the obligation under the Education Act 1994 to allocate resources in a fair, democratic and accountable manner, whether enforceable by way of judicial review or as part of a contract, must be interpreted if at all possible to give effect to students’ Convention rights. Given the flexibility of the terms involved, this should not be difficult.

The final problematic area in relation to horizontal effect is substantive. If students and student societies have rights against their students’ union and university, so also students’ unions have rights against individual students and student societies. For the other student members, too, have rights of association, on which basis they can set policies which may have the effect of excluding individual members or groups. Courts determining horizontal effect cases often fail to observe that both parties enjoy relevant rights; it is noticeable, for example, that the House of Lords in Ghaidan v Godin-Mendoza failed to note the restriction on landlord’s property rights inherent in their decision. But the tension is inevitable, and resolving it requires a consideration of the substantive rights at stake, as well as broader considerations of democracy, equality and diversity.

6. The human rights of religious associations,
including Student Christian Unions

Any association of individuals for religious purposes enjoys – as a society – rights of freedom of religion, freedom of expression, freedom of association and non-discrimination under articles 9, 10, 11 and 14 ECHR respectively.

Article 9 European Convention on Human Rights (ECHR) provides:

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 the protection of the rights and freedoms of others.

Kokkinakis v Greece (1993) concerned a man who had been prosecuted for trying to convert the wife of a Greek Orthodox cantor in Crete to his Jehovah’s Witness faith. In finding a violation of article 9, the European Court of Human Rights stated:

31.           As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention.  It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to "manifest [one's] religion".  Bearing witness in words and deeds is bound up with the existence of religious convictions.

According to Article 9 (art. 9), freedom to manifest one's religion is not only exercisable in community with others, "in public" and within the circle of those whose faith one shares, but can also be asserted "alone" and "in private"; furthermore, it includes in principle the right to try to convince one's neighbour, for example through "teaching", failing which, moreover, "freedom to change [one's] religion or belief", enshrined in Article 9 (art. 9), would be likely to remain a dead letter.

Thus article 9 protects not only the right to have and to change a belief, but the right to seek to persuade others to change their faith.

Article 10 ECHR provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In Handyside v UK (a case about an obscene publication), the Court stated,

49. …The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a "democratic society". Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". This means, amongst other things, that every "formality", "condition", "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued.

To the extent that the theological or ethical views of CUs offend other students, they are nonetheless protected by article 10.

Article 11 ECHR provides:

1.        Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.        No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

In Sidiropoulos v Greece (1998) the ECtHR had to consider the refusal of the Greek authorities to register a proposed cultural association, (‘Home of Macedonian Civilisation’). It stated:

40.  The Court points out that the right to form an association is an inherent part of the right set forth in Article 11, even if that Article only makes express reference to the right to form trade unions. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association’s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions.

Consequently, the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts.

In deciding to apply a religious test to members and officers, a CU is acting in accordance with its freedom to associate with those it pleases and determine the identity of the association. The imposition of any alternative test by a students’ union represents a prima facie restriction of that right. Furthermore, article 11 protects the right of negative association, or the right to withdraw. This is absolute, at least as regards voluntary groups such as religious societies. One cannot be forced to join in association with others. This means that (in effect) one does have an absolute right not to associate with those less committed than oneself – if one wishes.

Article 14 ECHR provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

In Thlimmenos v Greece (2000) the ECtHR had to consider the problem of a Jehovah’s Witness whose conscientious objection led to his being denied entry to the accountancy profession. The Court stated:

40.  The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).

41.  The Court notes that the applicant was not appointed a chartered accountant as a result of his past conviction for insubordination consisting in his refusal to wear the military uniform. He was thus treated differently from the other persons who had applied for that post on the ground of his status as a convicted person. The Court considers that such difference of treatment does not generally come within the scope of Article 14 in so far as it relates to access to a particular profession, the right to freedom of profession not being guaranteed by the Convention.

42.  However, the applicant does not complain of the distinction that the rules governing access to the profession make between convicted persons and others. His complaint rather concerns the fact that in the application of the relevant law no distinction is made between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences. In this context the Court notes that the applicant is a member of the Jehovah's Witnesses, a religious group committed to pacifism, and that there is nothing in the file to disprove the applicant's claim that he refused to wear the military uniform only because he considered that his religion prevented him from doing so. In essence, the applicant's argument amounts to saying that he is discriminated against in the exercise of his freedom of religion, as guaranteed by Article 9 of the Convention, in that he was treated like any other person convicted of a serious crime although his own conviction resulted from the very exercise of this freedom. Seen in this perspective, the Court accepts that the “set of facts” complained of by the applicant – his being treated as a person convicted of a serious crime for the purposes of an appointment to a chartered accountant's post despite the fact that the offence for which he had been convicted was prompted by his religious beliefs – “falls within the ambit of a Convention provision”, namely Article 9.

It follows that a condition imposed on a CU with which it cannot comply by virtue of its sincerely held religious beliefs is prima facie discriminatory in the terms of article 14 and requires justification as a necessary and proportionate restriction. It is the failure to make an appropriate accommodation for the religious believer that engages article 14. Any suggestion that the condition of open membership is not discrimination on grounds of religion is disingenuous. Thlimmenos had a conviction because of his legitimate underlying beliefs, so using his conviction to bar him from a profession indirectly discriminated on grounds of religion.

The European Court has applied these principles in a series of cases involving churches and religious associations, starting with Hasan & Chaush v Bulgaria (2004) 34 EHRR 55. The case arose from the interference of the Bulgarian Directorate of Religious Denominations in the internal life of the Muslim community, in particular by removing the first applicant as Chief Mufti. Bulgaria was found to have violated the Convention by interfering with the relevant church’s autonomy in selecting its leadership. It should be noted that churches are often more restrictive in their criteria for leadership than for membership, for the simple reason that the continuing identity of the church rests more on the fidelity of its leaders. There is nothing odd about a society of believers constituting themselves on this basis.

Most recently, in Case of the Moscow Branch of the Salvation Army v Russia (Application no. 72881/01), unreported 5 October 2006, the Court has found a violation of article 11 read in the light of article 9 ECHR in Russia’s refusal to re-register the Moscow Branch of the Salvation Army. This contains the fullest statement so far of the relevant Convention principles concerning religious associations. The Court stated:

57.     The Court refers to its settled case-law to the effect that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001-XII).

58.     While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one's] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one's religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. The State's duty of neutrality and impartiality, as defined in the Court's case-law, is incompatible with any power on the State's part to assess the legitimacy of religious beliefs (see Metropolitan Church of Bessarabia, cited above, §§ 118 and 123, and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000-XI).

59.     The Court further reiterates that the right to form an association is an inherent part of the right set forth in Article 11. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association's aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, § 40).

60.     As has been stated many times in the Court's judgments, not only is political democracy a fundamental feature of the European public order but the Convention was designed to promote and maintain the ideals and values of a democratic society. Democracy, the Court has stressed, is the only political model contemplated in the Convention and the only one compatible with it. By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that may claim to spring from “democratic society” (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, §§ 43-45, and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 86-89, ECHR 2003-II).

61.     While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those proclaiming or teaching religion, are also important to the proper functioning of democracy. For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, 17 February 2004).

62.     The State's power to protect its institutions and citizens from associations that might jeopardise them must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”; thus, the notion “necessary” does not have the flexibility of such expressions as “useful” or “desirable” (see Gorzelik, cited above, §§ 94-95, with further references).

One of the reasons put forward by the State for refusing re-registration of the Salvation Army was that the religious character of the association was (allegedly) confusingly described as ‘the Evangelical faith, the faith of The Salvation Army and the Christian faith’. The Court rejected this reason, stating that:

92.  The Court points out that, according to its constant case-law, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.

Thus by treating the name as part of ‘the means used to express beliefs’ the Court denied to the state authorities an interest in changing the name the religious association chose for itself.

Finally, the Court pointed out that:

96.     As noted above, by the time the re-registration requirement was introduced, the applicant branch had lawfully existed and operated in Russia as an independent religious community for more than seven years. It has not been submitted that the community as a whole or its individual members had been in breach of any domestic law or regulation governing their associative life and religious activities. In these circumstances, the Court considers that the reasons for refusing re-registration should have been particularly weighty and compelling (see the case-law cited in paragraph 76 above). In the present case no such reasons have been put forward by the domestic authorities.

97.     It is also relevant for the Court's assessment that, unlike the applicant branch, other religious associations professing the faith of The Salvation Army have successfully obtained re-registration in Russian regions and at federal level (see points 99 and 101-04 of the Report on Russia's Honouring of its Commitments, cited in paragraph 47 above, and point 5 of the Parliamentary Assembly's Resolution on the Russian Religions Act, cited in paragraph 49 above). In view of the Court's finding above that the reasons invoked by the Moscow Justice Department and endorsed by the Moscow courts to deny re-registration of the applicant branch had no legal or factual basis, it can be inferred that, in denying registration to the Moscow branch of The Salvation Army, the Moscow authorities did not act in good faith and neglected their duty of neutrality and impartiality vis-à-vis the applicant's religious community (see Metropolitan Church of Bessarabia, § 123, Hasan and Chaush, 62, both cited above).

CUs do not consider themselves to be churches, since they are non-denominational, having no ordained ministry and not administering sacraments of baptism or communion. Yet it is submitted that their situation closely resembles that of the Salvation Army in Moscow. It is certainly not a condition of protection under article 9 that a society has to consider itself a church. They are religious societies which have existed lawfully and peacefully for decades as registered student societies, having access to the associated privileges of such a status, such as use of premises, advertising, recruitment of new members at student events, and some financial provision. The society is entitled to decide who shall be a member, and to be treated on equal and religiously-neutral terms with other societies. In this context it is worth drawing attention to the long-standing existence of student Christian Unions on the current basis of a restricted leadership and membership (since at least 1928) and the entirely unproblematic nature of that restriction in many parts of the country today. 

Two further human rights dimensions of the situation of student religious societies require consideration. The first concerns the interplay between restricted liberty and non-discrimination. The second concerns freedom and equality within associations.

The first area of complication involves the question of whether this a restricted-liberty case or a religious discrimination case. Strictly speaking, the disaffiliation of a student religious society does not completely remove the liberty of religious association of its members. As adults and citizens they are legally free to join other existing churches and religious associations, or to establish their own. Of course, given the typical situation of students, disaffiliation makes the exercise of their rights more difficult, but not impossible. Some religious societies survive without it. Clearly one would not face the same difficulties as faced the unregistered Salvation Army (which, of course, continued to exist in some form). Do the practical difficulties attendant on disaffiliation amount to a denial of liberty?

The European Court has not yet developed a clear doctrine of factual breach. The most extreme case in which breach was denied was Cha’are Shalom ve Tsedek v France,[65] in which it was held that the availability of glatt kosher meat from another country meant that the French prohibition on its production was not a breach of rights. This has been widely criticised, and the English courts are, rightly, moving to a more generous position. In R (SB)  v Governors of Denbigh High School,[66] the House of Lords held that the wearing of a jilbab by a Muslim school girl was a manifestation of her religious beliefs, and that a school uniform policy preventing her did amount to a potential breach. However, given the fact that the applicant’s parents had chosen a school outside the catchment area in knowledge of the uniform policy, and given the existence of alternative schools which would have permitted the uniform, a majority of their Lordships found that there had actually been no breach. 

Obviously, each case will turn on its facts. It is suggested that the question to ask is whether the religious society in any given situation can realistically continue to exist and operate within the university community. The question is whether, if affiliation is denied, it can still access rooms and publicity and engage with the student body more generally.

If disaffiliation does not amount to a restriction of liberty, it will certainly raise questions of non-discrimination. Cases involving religious associations under the European Convention of Human Rights have not simply concerned questions of their registration – and hence legal existence – and problems of state interference with their internal autonomy. They have also raised questions of access by religious associations to resources on a basis of non-discrimination. Religious associations cannot  insist that the State establishes a system for the collection and distribution of tax from members to religious associations. But if it chooses to do so, such a system must be non-discriminatory.[67] This is not incompatible with differential distributions of financial resources, so long as such differences reflect ‘neutral’ criteria such as the civil functions of a state church. Such civil functions might be the conduct of marriages and burials, the maintenance of buildings of historic value or the keeping of ancient public records.[68] The extent of general contributions to the association for these functions must be proportionate to their actual cost.

There can be little doubt that disaffiliation makes it harder for a student religious society to exist over time and function successfully. This burden requires justification as necessary and proportionate by reference to neutral criteria.

The second area of complication concerns the interplay between different levels of associational liberty. Obviously, if a religious association has a certain religious identity, the preservation of that identity will in some way exclude those who differ. The imposition of a leadership or membership test is one obvious way of ensuring that the identity of the association is preserved. The European Court and other enforcement bodies have consistently held that the liberty of the individual does not trump the liberty of the group, but is preserved by the right to leave and form a different association on a different basis.[69]  The freedom to leave the association as an individual or collectively as a schismatic group is the ultimate guarantee of liberty. The same applies where a congregation is part of a wider denomination. The right of associative religious liberty is preserved by the right to leave en masse and form a new denomination. This is recognised by English courts as well. In RSPCA v AG [2002] 1 WLR 448 the applicant association applied for a declaration that the Human Rights Act 1998 did not prevent it from excluding from membership those who campaigned to bring about a change in its policy of absolute opposition to all forms of hunting with dogs. Lightman J stated (at paragraph 37) :

‘What really is in question in this case is not the freedom of speech or thought of members or applicants for membership, but the freedom of association under article 11 of the Convention of the society itself: that freedom embraces the freedom to exclude from association those whose membership it honestly believes to be damaging to the interests of the society.’

The same, however, does not apply as between a church and the state – as if the state could set the limits of orthodoxy and require dissenters to emigrate. That would amount to a fundamental denial of rights.

In para. 91 of his ruling, Mark Shaw QC relies on some of the cases noted above to argue that the students’ union has the right to set a policy and require adherence as a condition of membership. But this is very strange. A students’ union is not a religious society with an identity to preserve, but by law must serve the interests of the generality of students. Students who find themselves at odds with the union have no real option to set up an alternative union. However, students who do not agree with the doctrinal basis of a Christian Union are entirely free to establish an alternative group. This problem is essentially one of the tension between the associational rights of students’ unions and the associational rights of affiliated clubs and societies. It is the religious society that has the right to exclude the dissenting member, not the students’ union that has the right to exclude the dissenting society. The tension cannot be resolved simply in favour of the larger group. One would have thought this was obvious; it becomes more so when one takes into account broader considerations of democracy, equality and diversity.

7. Broader considerations of democracy, equality
and diversity

Although both the students’ union and a student society enjoy rights of association, they are not in identical positions. A students’ union by law exists to serve the generality of the students, and is under legal obligations to act ‘fairly’ and ‘democratically’. It administers property and grants benefits on behalf of all students. A student society which is not affiliated will experience a substantial disadvantage in accessing facilities and other students. There is a sense in which the students’ union regulates a limited public square, i.e. the relatively closed student community, which in its diversity of clubs and societies to some extent mirrors that of the wider community. This is – after all – the source of the charitable educational benefit of involvement, both in student politics and student societies. Furthermore, while it is relatively straightforward for a group of students to set up a new society, there is no practical possibility of setting up an alternative union.

This suggests that the nature of the democratic principles a student union is obliged to observe mirrors those applicable more widely to society. In particular, majority decision-taking must be tempered by the respect for minority rights, the democracy must be a plural one in which clubs and societies can form the focal points of particular opinions and activities, and the union itself must be neutral on religious matters. It is worth repeating the understanding of democracy referred to by the European Court in the Salvation Army case above:

61.  While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those proclaiming or teaching religion, are also important to the proper functioning of democracy. For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively…

The indiscriminate application of non-discrimination standards to clubs and societies is destructive of the very pluralism that characterises Western democracy. A political party must draw distinctions on political grounds if it is to retain its identity. An orchestra must select on the basis of musical ability and instrumental need if it is to perform well. A sports team must select sportsmen and women according to sporting ability. These criteria of dstinction might be objectionable in another context. A political party should certainly not select on the basis of sporting ability, for example. It should also be noted that the application of certain criteria may be highly situation-sensitive. This is very clear in the case of gender-specificity, which may rightly play a role in some sports and not others, or in some musical contexts, but not others. A students’ union has no interest in destroying (e.g.) single-sex rugby or the male voice choir, by insisting on the admission of women, let alone the abandonment of trials or auditions.

By the same token, a religious society may decide to protect its identity by stating its religious position and requiring members to adhere to that position. The students’ union has no interest in promoting a particular type of religious society, for example, by permitting a ‘Christian society’ but prohibiting a ‘Roman Catholic society’. Nor does it have any interest in ensuring that all religious societies take the form of interest-groups rather than that of a group sharing a commitment to a belief. Its role is limited by the need to respect pluralism – i.e. to allow students to form whatever clubs and societies they choose. That form might be open to all interested students, or it may be restricted to those who can share the identity of the society. It is up to the students! Mark Shaw QC’s failure to recognise the significance of pluralism at para. 92(4) of his ruling is one of its most disturbing features.

In short, the nature of the equality that characterises our democracy, and thus also informs the ‘fair and democratic principles’ a students’ union is legally obliged to respect, is a plural democracy, in which groups as well as individuals are treated equally. The association rights of students’ unions are thus not the same as those of its affiliated clubs and societies, which have specific identities and purposes, including religious ones. By contrast, the association rights of stduents’ unions are much more like those which under social contract theory form the foundation of the state. Any balancing of human rights must take account of this difference.

8. Necessary and proportionate limitations on the
rights of Christian Unions

The enjoyment of Convention rights may be limited in necessary and proportionate ways to secure other legitimate public interests. A Student Union has a legitimate public interest in regulating the affairs of its registered student clubs and societies to ensure their financial propriety, independence and pursuit of stated objectives. It also has a legitimate interest in implementing a policy of non-discimination against students and others on grounds such as gender, race, age, religion and sexual orientation.

In order to be a proportionate, and thus justifiable, limitation of a Convention right, a measure must be capable of securing a legitimate aim and the least intrusive means of securing that aim. There must be a reasonable relationship of balance between the gains to be achieved and the cost to the enjoyment of rights, and any limitation must be applied in a non-discriminatory fashion.

Requirements that every student society have a constitution with identified officers who are accountable for the activities and finances of the society are clearly justified, not least as a necessary application of the obligations contained in s. 22 Education Act 1994.

A students’ union has a legitimate interest that the activities of all clubs and societies be open, or accessible, to all students, at least as observers. This encourages the social and cultural development of students generally and does not jeopardise the identity of the group. The requirements of ‘openness’ must be sensitive to the context. In the case of musical groups, it cannot mean that all who wish may perform – but that there is a fair system of audition and public performance. In the case of political groups, it cannot mean that one has the right to be simultaneously a member of more than one political party, but that events must be directed at the student public. In the religious groups likewise a distinction has to be drawn between open accessibility and requiring a group to accept into membership someone who is not in agreement with its objects. A student Jewish society cannot be forced to accept a Palestinian Muslim into membership, if it does not wish to. The freedom to establish an alternative society with objects embracing several religions or broader conceptions of religion, together with the ability on the part of all students to attend events put on by a religious society, is rightly upheld by a students’ union. Further impositions on religious groups are disproportionate.

A requirement that a CU adopt a different name against its will might be justified, if it is necessary to prevent confusion with a different but identically-named society. However, it is not a legitimate aim to force religious societies to adopt a name against their will simply to reflect the theological judgment of the Students’ Union that their preferred name better reflects the identity of the group. Students’ Unions are in no better position to make such a judgment than Russia was in the case of the Salvation Army. In this context the historic significance of the name ‘Christian Union’ noted in the opening paragraphs of this paper should be noted.

The application of an anti-discrimination policy to student clubs and societies is a legitimate aim. However, the policy is only capable of fulfilling this aim if it ensures that the society does not discriminate on grounds irrelevant to their function and purpose. The application of an anti-discrimination policy can be self-stultifying if it prevents the very diversity the policy is supposed to encourage. It must be in accordance with the pluralist conception of democracy set out above. Thus, it is appropriate to require that the men’s rugby squad should not discriminate on grounds of religion, but it is not appropriate to require them not to discriminate on grounds of gender, since gender-separation is a recognised feature of many sports, including rugby. The application of a religious non-discrimination requirements to religious groups goes to the heart of their identity and purpose and therefore would destroy their specific religious identity. It limits their freedom of religion and association in a way which is neither necessary nor proportionate.

A requirement that a CU should not affiliate to any external body might be legitimate if it is applied without discrimination to all clubs and groups, and if it serves the purpose of preserving the independence of the student group. Such independence can be secured by ensuring that the constitution of any society makes it clear that affiliation is a voluntary matter capable of revocation by the members, through resolution or constitutional amendment. A blanket ban on affiliation serves no obvious purpose, not least because Student Unions are themselves often affiliated to national bodies, and is therefore disproportionate.

9. Conclusion

(1) Students’ Unions and Universities are not legally unconstrained in their recognition and affiliation of student societies, but must observe the general requirements of fairness and democracy set out in s. 22 Education Act 1994, along with its more precise obligations.

(2) These obligations are probably remediable by way of judicial review against a university if it fails, through its internal review mechanism, to secure their fulfilment. If judicial review is inappropriate, failure to observe the terms of s. 22 will be a breach of the contract to educate.

(3) The disadvantaging of a student religious group may also raise a question of religious discrimination under the Equal Treatment Regulations, but this is unlikely to add any further obligations of substance.

(4) Given the recent decisions of the European Court of Human Rights to bring even higher education within the scope of article 2 First Protocol ECHR, it is arguable that the provision of all aspects of higher education is a ‘public function’ for the purposes of the Human Rights Act 1998. This includes the broader educational purposes of supporting a range of student clubs and societies.

(5) Irrespective of this vertical effect, human rights have an indirect horizontal effect within the English legal system. In particular, and least problematically of all, they inform the interpretation of broad statutory terms such as ‘fair’ and ‘democratic’ as found in s. 22 Education Act 1994.

(6) Student religious societies, including Christian Unions, enjoy Convention rights to determine the basis of their associative identity, to select their own leaders and members, to call themselves what they please, and to seek to promote their views among other students.

(7) Student religious societies also enjoy a right not to be discriminated against in the enjoyment of their religious associational rights. In particular they have a right not to be subject to policies which prefer some religious groups over others. Differential status of affiliation and access to resources are classic forms of discrimination between religious groups.

(8) Students’ unions also enjoy Convention rights of association, but are limited by their obligation to serve the general interests of all students in accordance with principles of fairness and democracy. Democracy under the European Convention is pluralistic, not individualistic. Students’ unions may therefore not themselves adopt a religious identity, or prefer one religion over another, or prefer one understanding of Christianity over another, or undermine the identity of any group by imposing standards of non-discrimination which undermine the identity of the group.

(9) Students’ unions may set religiously-neutral policies to ensure the proper constitution of societies and accountability of society officers, to avoid confusion about their identity and purpose, and to ensure open access for all students to their activities. Open access does not mean that every student must necessarily qualify for membership and/or participation. This requirement must be sensitive to the nature and identity of the group. In particular, a society constituted as a society of religious believers may require its members and officers to share those constitutive beliefs.

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[1] Early history recounted in O.R. Barclay, Whatever happened to the Jesus Lane lot?, IVP, 1977; Geraint Fielder, Lord of the Years, IVP, 1988.

[2] It was a genuine attempt to look beyond the recent trends in Western European theology to articulate ‘basic’, ‘historic’, ‘traditional’, ‘orthodox’ or ‘mainstream’ Christianity. No adjective is quite adequate.

[3] The Doctrinal Basis comprises ‘the following basic truths of Christianity as revealed in Holy Scripture:

(a)     There is one God in three persons, the Father, the Son and the Holy Spirit.

(b)     God is sovereign in creation, revelation, redemption and final judgement.

(c)     The Bible, as originally given, is the inspired and infallible Word of God. It is the supreme authority in all matters of belief and behaviour.

(d)      Since the fall, the whole of humankind is sinful and guilty, so that everyone is subject to God's wrath and condemnation.

(e)     The Lord Jesus Christ, God's incarnate Son, is fully God; he was born of a virgin; his humanity is real and sinless; he died on the cross, was raised bodily from death and is now reigning over heaven and earth.

(f)      Sinful human beings are redeemed from the guilt, penalty and power of sin only through the sacrificial death once and for all time of their representative and substitute, Jesus Christ, the only mediator between them and God.

(g)     Those who believe in Christ are pardoned all their sins and accepted in God's sight only because of the righteousness of Christ credited to them; this justification is God's act of undeserved mercy, received solely by trust in him and not by their own efforts.

(h)     The Holy Spirit alone makes the work of Christ effective to individual sinners, enabling them to turn to God from their sin and to trust in Jesus Christ.

(i)       The Holy Spirit lives in all those he has regenerated. He makes them increasingly Christlike in character and behaviour and gives them power for their witness in the world.

(j)       The one holy universal church is the Body of Christ, to which all true believers belong.

(k)     The Lord Jesus Christ will return in person, to judge everyone, to execute God's just condemnation on those who have not repented and to receive the redeemed to eternal glory.’

[4] See the International Federation of Evangelical Students at http://www.ifesworld.org/home/.

[5] Para. 92(3).

[6] Para. 86(2).

[7] Paras. 75(7) and 86(6).

[8] Para. 92(3).

[9] Para. 105.

[10] Para. 110(3).

[11] Para. 92(6).

[12] Para. 75(10) and 91.

[13] Para. 99(1) and (2).

[14] Para. 92(4).

[15] Para. 75(8) and 87.

[16] Paras. 75(8), 80(4) and 122.

[17] Para. 122(5).

[18] Para. 79.

[19] Para. 99(3).

[20] Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 CA.

[21] London Hospital Medical College v IRC [1976] 1 WLR 613.

[22] Baldry v Feintuck [1972] 1 WLR 552; AG v Ross [1986] 1 WLR 252.

[23] Sub-s (5)(b).

[24] D. Farrington & D. Palfreyman, The Law of Higher Education (2006), para. 9.05.

[25] S. 43(1).

[26] S. 43(2).

[27] S. 43(8).

[28] R v University of Liverpool ex parte Caesar-Gordon [1990] 3 WLR 667 DC.

[29] See Farrington & Palfreyman, op. cit., para. 9.09.

[30] R v Thames Valley Students Union ex parte Ogilvy [1997] CLY 2149.

[31] Anyanwu v South Bank Student Union [2001] 1 WLR 638.

[32] Commissioners of Customs & Excise v University of Leicester Students’ Union [2002] ELR 347.

[33] R v Panel on Takeovers and Mergers ex parte Datafin plc [1987] QB 815.

[34] Farrington & Palfreyman, op. cit., para. 9.07.

[35] Clarke v University of Lincolnshire and Humberside [2000] 1 WLR 1988 CA.

[36] See above. The case is only reported in the briefest of terms.

[37] A whole series of cases are noted in Farrington & Palfreyman, op. cit., ch. 15.

[38] See R v Hull University Visitor ex parte Page [1993] AC 682.

[39] Higher Education Act 2004, s. 12.

[40] [2003] ELR 8.

[41] Moran v University College, Salford [1994] ELR 187; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.

[42] [2001] ELR 480.

[43] [2003] ELR 125.

[44] The Law of Higher Education (2006), paras. 13.70 – 13.74.

[45] e.g. R v Provincial Court of the Church in Wales, ex parte Williams, CO 2880/98.

[46] Under contract, a student will be limited to injunction and declaration; certiorari, prohibition and mandamus will not be available.

[47] (1985) 8 EHRR 235.

[48] ECHR art. 1.

[49] Osman v United Kingdom (1998) 29 EHRR 245.

[50] Pretty v United Kingdom [2002] ECHR 427.

[51] See, in respect of article 9, Otto-Preminger Institut v Austria (1994) 19 EHRR 34; 97 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia (Judgment of 3 May 2007); in respect of article 10, Ozgur Gundem v Turkey (2001) 31 EHRR 49; in respect of article 11, Young, James and Webster v UK (1981) 4 EHRR 20.

[52] Sir Richard Buxton in (2000) 116 LQR 48.

[53] Sir William Wade, 116 LQR 217; Lord Lester & David Pannick, 116 LQR 380; Murray Hunt [1998] Public Law 423; Nicholas Bamforth (1999) CLJ 159 and [2001] 117 LQR 34; Gavin Phillipson [1999] 62 MLR 824.

[54] Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2004] 1 AC 546.

[55] (1993) 19 EHRR 112.

[56] Paras. 25-28.

[57] 10 November 2005.

[58] Mursel Eren v Turkey (7 February 2006).

[59] See Phillipson in (2003) 66 MLR 726.

[60] [2004] 2 AC 457.

[61] At 473.

[62] [2004] 1 AC 816.

[63] [2004] 2 AC 557.

[64] X v Y [2004] ICR 1634 CA paras. 54-59.

[65] Jewish Liturgical Association Cha’are Shalom ve Tsedek v France [2000] ECHR 351.

[66] [2006] 2 WLR 719.

[67] Iglesia Bautista El Salvador v Spain No. 17522/90 72 DR 256.

[68] Bruno v Sweden No. 32196/96; Lundberg v Sweden No. 36846/97

[69] X v Denmark, No. 7374/76 5 DR 157; E. & G.R. v Austria, 9781/82, 37 DR 42; Gottesmann v Sweden, No. 10616/83, 40 DR 284 (4.12.84); Knudsen v Norway, No. 11045/84, 42 DR 247 (8.3.85); Karlsson v Sweden No. 12356/86, 57 DR 172 (8.9.88). Spetz v Sweden No. 20402/92; Hautaniemi v Finland No. 24019/94; Williamson v United Kingdom, No. 27008/95; Sijakova v Former Yugoslav Republic of Macedonia No. 67914/01.  See also Skordas v Greece No. 48895/99, although inadmissible here for failure to exhaust domestic remedies.