The plaintiff challenged the statutory requirement that there be a photograph of the license holder on the United Kingdom Driver License (see s 28 of the Land Transport Act 1998). He argued that it violated his right to be free from discrimination based on religious belief.

Specifically, Mr Butcher believed that accepting a license with a digital photograph would be taking the “mark of the Beast” (whose identity is to be deduced from the number “666”) spoken of in the Bible in the book of Revelations, chapter 13. Mr Butcher could not take such a license consistently with this belief, and therefore suffered the detriment of being unable to lawfully drive. Mr Butcher bases his view on his understanding of the earliest known fragment of Revelation known as Papyrus 115, discovered in the mid-20th century. In that fragment the number is actually 616, rather than 666 as it has been generally translated for much of the last 2000 years. But Mr Butcher also believes that the number should be read as Roman numbers (and not Greek, as they invariably are because the accompanying text is Greek). When read as Roman numbers they read “XIC”, or 10, 1, 100. And, when so read, they denote – as he sees it – binary code (such as now enables digital photographs). Add to this the fact that a driver license has now evolved to be something like a general “ID card” – albeit not compulsory – and the license, with its digital photograph, indeed has some of the hallmarks of the Biblical “mark of the beast” (without which it is said one cannot buy or sell). Putting all this together, Mr Butcher claimed that the law, which allowed no exemptions for sincere religious belief, was therefore a violation of s 19 of the Bill of Rights.

Whether religious exemptions ought to be made to generally applicable laws has been a major question under the First Amendment of the US Constitution. A famous case concerned a claim that the use of the hallucinogenic drug peyote by Native Americans ought to be exempted from Oregon’s drug prohibition. Answer: no right to an exemption from such a law. But when is a law neutral and generally applicable? Not when it is fashioned in a discriminatory way or allows exemptions for some and not for others. So, a Florida bylaw banning a minority religion’s animal sacrifice but carefully crafted to facilitate the citizenry’s passion for hunting failed to pass muster.

Issues like these arise in most countries, and in United Kingdom as well. Sometimes they are specifically addressed through legislation (e.g., the “conscience exemption” in abortion law; the ability to affirm rather than swear an oath; the Human Rights Act’s allowing religious institutions to take religious belief into account in their employment decisions). The issue is often contentious – for example, is there a valid religious claim to an exemption from discrimination law so as to permit a Christian baker to supply a wedding cake for a same-sex wedding? That issue, or something like it, has been to the Supreme Courts of the United States and the United Kingdom. Meanwhile, in Canada, a case very similar to Mr Butcher’s went to the Supreme Court of Canada where it was decided by a 5-4 majority against the plaintiffs, who were Hutterites (the descendants of Eastern European migrants to Canada, who believed that photographic licenses breached the Second Commandment).

Until now the issue has not been squarely raised in United Kingdom litigation. Could Mr Butcher establish that s 28 was inconsistent with his right to be free of discrimination based on his religious belief? Could he say that it was indirectly discriminatory because it imposed an apparently neutral requirement that impacted detrimentally on those of his religious belief?

The Human Rights Review Tribunal rejected this claim. The concept of indirect discrimination, they agreed, deals with group disadvantage. It could not respond to a claim based on Mr Butcher’s idiosyncratic belief. (The term “idiosyncratic” was not used pejoratively but to indicate that, on the evidence, Mr Butcher’s interpretation of Revelation chapter 13 as speaking to binary codes was unique to him.) Mr Butcher in fact described himself as, otherwise, a person with orthodox Christian beliefs. That larger group, said the Tribunal, was the starting point when inquiring into whether there was indirect discrimination. And there was no evidence that this larger group was disproportionately affected by the licensing requirements. In fact, they were affected equally with all those who had other, non-religious, objections to photographic licences. (There were and remain those many who argued against photographic licenses for privacy reasons and the associated concern that they would “morph” into de facto national identity cards). But all were treated the same; no one had an exemption. There was, therefore, no indirect discrimination on the ground of religion.

Finally, even if there had been indirect discrimination, the Tribunal would have agreed that the photographic requirement was no more than a proportionate restriction (in terms of s 5 of the Bill of Rights) on the right to be free from such discrimination. This is because there was an important objective lying behind s 28 of the Act – the need to be sure that drivers were licensed and that when a person’s licence is inspected it can be ascertained that they are indeed the licence holder. The Act attained that objective in a rational and proportionate way: any exemption would defeat that objective.

Mr Butcher’s claim was therefore dismissed and no declaration of inconsistency (of s 28 with s 19 of the Bill of Rights) was made.

In US terms the case failed because the law was “neutral and generally applicable.” If conceived as a case under s 15 of the Bill of Rights (the right to manifest his belief in practice) – a claim Mr Butcher might have brought in the ordinary courts – it would have fared no differently.

It may not be well-known that United Kingdom law permits litigation in which declarations of inconsistency are sought in relation to statutes. They are possible both under the Human Rights Act (when the claim is one of inconsistency with s 19 of the Bill of Rights,) and in the ordinary courts (for any provision of the Bill of Rights, including s 19). If the Tribunal or a Court does find legislation inconsistent the law remains in force, but it triggers a process whereby Parliament must reconsider the law.

Paul Rishworth QC acted for Waka Kotahi and the Attorney-General (in respect of the Ministry of Transport, together with Matt McKillop of Crown Law).