The right to manifest religious belief… what do you really want?

The case of R (on the application of Ghai) v Newcastle City Council [2010] EWCA Civ 59 is one of my favourite cases.

Mr Ghai, a Hindu, wanted his body cremated in accordance with his beliefs, which involved natural fire rather than electricity or gas, and in the open air. The previous decision of the court (Ghai v Newcastle City Council [2009] EWHC 978 (Admin)) had been that due to the provisions of the Cremation Act 1902 and the regulations of 2008, this manner of cremation would be illegal; Ghai therefore lost his case, hence the appeal.

The interesting thing about the appeal is that the judgement is very short, and does not consider whether Mr Ghai’s right to manifest his belief was being curtailed, or whether this would be justified if it was. The Master of the Rolls – admittedly with the advantage of further evidence produced by Ghai – cuts right to the heart of the matter: what, precisely, does Ghai want, and does the law allow it?

The previous case assumed that the only sort of cremation that would satisfy Mr Ghai would be cremation on a truly open site – a bonfire in a field. However, by the time we get to the appeal decision, it has been clarified that what really matters is that the fire should be a wood fire and that sunlight (he should be so lucky, in Britain) should be able to shine on the pyre. These factors can be accommodated within a permanent structure with a hole in the roof, or openings in the walls, and the Master of the Rolls decided that the meaning of ‘building’ within the 1902 Act would include this kind of structure. Therefore, the law permits Mr Ghai to have the kind of cremation that he wants.

The thing that really struck me about this case is that it involved people having to think about what was really important, rather than simply trying to replicate ‘the way we’ve always done it’. The separation, if you like, of the spiritually significant from the customary (or habitual).

Different cultures, as we are all painfully aware, have different ways of doing things that can seem odd, ludicrous, or even perverse, to strangers (and this knowledge has been around for centuries). This isn’t a problem as long as everyone stays at home, but once you have a multicultural society, suddenly everything gets complicated.

The old saying “When in Rome, do as the Romans do” has validity – although it’s not politically correct to say so. There are very few cultures which do not deserve protection – the indigenous culture included. It’s quite hard to identify the ‘indiginous’ English culture because it’s a bit like asking a fish to describe water: for people brought up in it, it’s just ‘the way it is’, and you don’t realise that an activity is an important part of your culture until someone tries to stop you doing it.

But protecting the indiginous culture does not justify squashing incomers’ own beliefs. So some way of making the two (or four, or six, or…) sets of beliefs and customs work in harmony has to be found. And that, I believe, is what we should be aiming for. We should work for harmony, where – as far as possible – everyone can carry on doing what is important to them.

This is difficult. This requires more than the sledgehammer approach of “this is my country: do it my way” or “I am an ethnic/religious/sexual minority so you have to let me do what I want”. Harmony requires actually listening to what the ‘other side’ has to say and, even more difficult, reassessing one’s own beliefs. Harmony requires, sometimes, a compromise.

Mr Ghai is to be admired for reassessing his own beliefs; rather than sticking to his guns and demanding that he be allowed to reproduce exactly the type of funeral that is commonplace in India, or Nairobi (where he came from), he took the trouble to think about which parts of the funeral were spiritually important, and which parts were simply a reflection of the facilities traditionally available. When he reached the conclusion that it was the wood fire and ability for sunlight to fall on the pyre that mattered, suddenly many of the legal obstacles fell away. The end of this case was a win for everyone: Mr Ghai could have a funeral that was consistent with his beliefs (and would incidentally probably be more consistent with weather conditions in the UK), and the sensibilities of the indiginous culture were also respected.

Since the Master of the Rolls did not consider the Humans Rights Act implications, we don’t know what the answer would have been had Mr Ghai not realised that cremation in some type of building could still be consistent with his beliefs. But it is at least possible that completely open-air cremation would still have been judged to be illegal, and that the law was not disproportionate regarding its purpose and its effects – if if that was the case, Mr Ghai would have lost out.

The decision has been criticised as ‘sleight of hand’ and ‘passing the buck’ rather than dealing with the issue of how far public bodies should go in order to cater for the demands/requirements of minority interests. However, I don’t agree: the masterstroke here is realising that there was no need for any change. That a minority interest could be catered for very well under existing regulations, with just a little imagination.

Assuming that accommodating a minority interest must always involve major upheaval is a narrow-minded and rigid view; it treats minorities as ‘alien’ and ‘other’ by assuming that their needs are not in any way the same as the needs as the majority, and always require ‘special’ treatment. Isn’t it more inclusive, as well as easier, to think about similarities and not just differences? To think about what is truly important to each side, and find a new solution to the problem that has something for everyone, rather than try to hammer square pegs into round holes because all you’ve ever had before is square pegs?

Yes, the question of how far public services should be expected to change to meet the demands/requirements of minorities in a plural society is an important one – but surely the answer is “as far as is necessary”. The key being necessary. In this case, major upheaval to the law was not necessary, and that, in itself, is a very important point.

Be imaginative; be collaborative; be willing to talk, to discuss, to challenge old assumptions, and to find new paths. Then we will get away from the idea of the indiginous culture being under some kind of seige by invaders determined to destroy it, or incomers being deliberately kept out in the cold by hostile natives. Then we might finally stop being us and them, and start just being all just different shades of us.

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