Ruling on religious burials recognises our individuality, our freedom and our humanity

8 May, 2018 | Blogs, Latest, Protecting Human Rights in the UK

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by Alex Goldberg, René Cassin Trustee


Last month’s High Court ruling has instructed senior coroner Mary Hassell to change her ‘cab rank’ queuing policy for handling burials. The High Court has found the policy to be in breach of both of the Human Rights Act and Equality Act. Previously, the Senior Coroner for Inner London had said she would not fast-track inquests on religious or cultural grounds despite the fact that under Jewish and Islamic law, bodies must be buried on the day of death or as soon as possible afterwards, and other Coroners did seem to accommodate this.

The High Court has effectively told Mary Hassell to go away and draft a new policy “that meets the needs of all concerned” with advice from chief coroner and communities.

Her jurisdiction covers Camden, Islington, Hackney and Tower Hamlets, home to large communities of orthodox Jews and Muslims.

This issue comes up from time to time: those falling foul of the law often use the explanation that they are applying a generic rule to everyone and claim that it is ‘fair’. However, the law recognises that there are cultural or religious differences and it is unlawful under the Equality Act to indirectly discriminate: namely when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The Equality Act says it puts you at a particular disadvantage. It recognises our diversity and our religious and cultural practices are at the heart of this logic.

It’s about treating people at where they are: to be fair to them and treat each of us with dignity and decency where this is possible. In legal theory it avoids what Tocqueville describes in Democracy in America as the tyranny of the majority, a decision “which bases its claim to rule upon numbers, not upon rightness or excellence”.

Naturally, at times of death, when families are bereaved and grieving, the last thing they need is for bureaucracy to start limiting their religious freedoms – they just want to do ‘what is right’ for their partner, mum, dad and sometimes tragically child.

Death has many taboos and customs. For two years I was the sole Jewish representative at the Home Office’s Burial and Cremations Advisory Group. In this time, we learnt about many new and alternative methods of laying people to rest at the end of their days. The experience taught me two things: firstly, that in 21st Century Britain there are very diverse social and religious attitudes to death, dying and bereavement; and secondly, Islam and Judaism share similar concerns. This includes the concerns that burials should take place as soon after death as possible. It was a real surprise to me to learn how long others kept bodies in the morgue or on ice. Jews try to bury the body on the day of death, if not within three days. Muslims have similar concerns for quick burials.

The current case has a precedent that was dealt with when in 2005, I was working at the Commission for Racial Equality. I received a letter from a very distressed Jewish family in Islington where the Registrar had not been available during the weekend when the death was on a Saturday and they had to wait well into Monday before being issued with a death certificate. Islington at the time had a 1% Jewish population. It had a 9% Muslim population. The Registrar explained to us that she could not possibly run an out of hours service (though most of London did at the time) and that she could show ‘favouritism’. It was politely pointed out that she could be in breach of the Race Relations Act. She changed her practices in line with the rest of London.

Today, as the High Court has now pointed out, these provisions are protected under the characteristics of race and religion in the Equality Act and under the Human Rights Act. What is good for Registrars is good for Coroners.

In an essay in a soon to be published book marking the 70th Anniversary of the Universal Declaration of Human Rights, one the co-founders of René Cassin, Dr George Wilkes writes on the centrality of freedom of religion in the Declaration:

“Religious freedom, as these discussants conceived it, was an individual’s freedom, including their freedom to choose a different religion and the freedom to do so in community with others. The freedom of members of a religious community remained, in their understanding, the freedom of the individual, not a right belonging separately to a community. As Malik [UN Representative from Lebanon] expressed it, this freedom needed to be defended against intolerant sectarianism. Even the Soviet representative appeared to accept the personal framing advanced for religious freedom”

The High Court has upheld the principles outlined in Universal Declaration of Human Rights on its 70th anniversary. The ruling recognises our individuality, our freedom and our humanity. And that recognition must bring some comfort to people struggling to come to terms with the loss of a loved one.

In 2018, the René Cassin is marking the 70th anniversary of the Universal Declaration of Human Rights, which was co-authored by its namesake, the French-Jewish Monsieur René Cassin.

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