Hajj: how globalisation transformed the market for pilgrimage to Mecca

Seán McLoughlin, University of Leeds

More than 2m Muslims are currently gathering in Mecca ahead of the annual Hajj, which begins on August 19. As long as they are fit and financially able, the pilgrimage is an obligatory act of worship that followers of Islam owe to God once in their lifetime. Reenacting the faith-testing ordeals of Ibrahim (Abraham, the Biblical founder of monotheism) and his family, Muslims believe that an “accepted Hajj” will cleanse them of all their sins. Their hope is to return home as pure as the day they were born.

But until the introduction of modern transport systems, most Muslims beyond the Arab world had little expectation of completing this fifth and final pillar of Islam. Before the mid-1950s, the number of overseas pilgrims rarely exceeded 100,000 and modern Saudi institutions were still developing. Yet by the early 2000s, the total number of Hajj pilgrims had passed the 2m mark, reaching a recent peak of just over 3m in 2012.

New opportunities for pilgrimage in the jet age have put immense pressure on the infrastructure of Mecca. Hundreds have lost their lives during periodic disasters including fires and stampedes, most recently in 2015. Undoubtedly, the Saudi authorities have invested huge sums in continually seeking to improve facilities and the overall management of the Hajj. Hajj organisers and guides I have interviewed compare overseeing the pilgrimage to hosting the Olympics every year.

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Read more: Here's how to make the Hajj safer – by better understanding crowd psychology

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But the kingdom’s Vision 2030, published by Crown Prince Salman in 2016, underlines that the Islamic tourism market has a significant role to play in diversifying Saudi Arabia’s non-oil-based economy. While the strategy is focused mainly on the Umrah (the year-round, non-obligatory minor pilgrimage), US$50 billion investment in new transport and other infrastructure also aims to double the size of the Hajj by the end of the next decade.

An artist’s personal take on the more formal views of Makkah and Madinah which typically grace British-Muslim front rooms. Kamel Baksh, 2015., CC BY-NC-ND

Supply and demand

A look at Hajj-going among British Muslims in an age of globalisation underlines the growing role of the market for religious tourism in shaping the organisation of the pilgrimage. At an industry event I attended earlier this year, The Council of British Hajjis, suggested that this niche sector of the UK economy is worth around £150m (£310m including Umrah).

Unlike all Muslim-majority nations, Muslim minorities in the West are not restricted to a Hajj quota of 1,000 pilgrims per million of population. Relatively prosperous, literate and increasingly socially mobile, they are generally free to perform the pilgrimage at a time of their choosing. Pilgrims in the West are also often younger than those in the rest of the Muslim world. The number of British Muslims performing Hajj each year rose from 759 in 1968 to around 25,000 by the mid-2000s – about twice the rate of UK Muslim population growth for the same period. About 100,000 now go annually for Umrah.

El-Sawy Travel was perhaps the first agency to organise a formal Hajj ‘package’ during the early 1980s. Seán McLoughlin, 2014, CC BY

In the West, secular governments play no direct role in organising Hajj. Until the 1990s, there were also just a few companies formally arranging Muslim pilgrimages in Britain. So, most UK Muslims travelled to Saudi Arabia as individuals or as part of a small community group. But during the early 2000s, in a bid to improve services to pilgrims, the Saudi authorities insisted that anyone organising Hajj should form a registered company and be properly licensed. By the mid-2000s, they also made buying a “package” from one of these organisers the only way for Muslims in the West to perform Hajj.

Rising prices

Today there are around 117 UK Hajj organisers licensed by Saudi Arabia. Each is responsible for their own annual quota of 150-450 Hajj pilgrim visas. British Muslims now have plenty of choice in terms of package options. But UK pilgrims wanting to perform Hajj in 2018 probably spent as much as £5-6,000 on their package. At an industry event last spring, I was told that a top company selling half their packages for £9,500 per person sold out in six weeks. Even an “economy” Hajj this year cost more than £4,000. Overall, the cost of Hajj-going has increased by around 25% in recent years.

Long-established pilgrim welfare charities such as the Association of British Hujjaj (established 1998) complain that high prices reflect UK organisers’ profiteering. But the bigger picture is that the restructured Hajj industry in Saudi Arabia is increasingly privatised and commercialised. The 2-3m Muslims arriving to the city of Mecca for one key week in the calendar create a huge demand for travel, accommodation and other services. And for all its investments in pilgrimage infrastructure, the Saudi government does not control the pricing of flights, rents and so on. Certain local subsidies are being reduced and Saudi VAT and municipality taxes have increased recently, too.

Pilgrims must circumambulate the Ka’ba anticlockwise seven times (tawaf). Peter Sanders, mid-1990s., CC BY-NC-ND

Members of the UK’s newly formed Licensed Hajj Organisers national trade association (established 2016) are in a risky business. In the tourism industry, payments are usually made in arrears, but UK Hajj organisers often make large down payments before packages are even sold. And because they lack the bargaining power of large Muslim governments, Hajj organisers in the West can pay a premium for some services. Political and economic instability, such as wars in the Middle East and the negative impact of Brexit on the pound, also affect pricing.

Regulation and the future

The new leadership of Licensed Hajj Organisers are keenly aware of the complex issues faced by the Hajj and Umrah industry. Few UK Hajj organisers can sell their entire quota without maintaining relationships with networks of sub-agents. Spot checks for “Hajj fraud” by Trading Standards suggest that long selling chains and a lack of proper documentation can encourage “over-selling” and even criminal scams.

That there is a new willingness in the trade to hold fellow organisers to account in this regard is clear from a new code of conduct launched by Licensed Hajj Organisers before Hajj this year. At the same time, many Hajj organisers still argue that the European Package Travel Regulations, intended to regulate “package holidays”, cannot account for the logistical and business complexities of Hajj.

Transformations in the organisation of Hajj-going in Britain represent only a local case study of challenges the Hajj and Umrah industry is facing worldwide. Piety and commerce have always existed cheek-by-jowl in Mecca. But the development of a consumer-capitalist model of religious tourism on the scale envisaged by Saudi Arabia is unprecedented. Great chains of buying and selling as well as believing now connect Muslims to the birthplace of Islam. But there are major issues to resolve across quite different regimes of regulation. For some, this suggests a need for greater international governance of the Hajj and Umrah.

Seán McLoughlin, Professor of the Anthropology of Islam, University of Leeds

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Workshop report: The regulation of financial abuse of religious and spiritual capital, Oxford Brookes February 2019.

Religion is powerful, with the power of religion being a type of religious capital. Such power can be abused. Religious fraud is a significant social problem, with one estimate of Christian fraud alone amounting to $34bn per year globally. It also raises profound theoretical questions around the appropriate relationship between the state, religious organisations and the community; and in particular the difficult question of the authority of the religiously pluralist state to determine facts in a religious context. The regulation of religious power that results in financial gain to a religious leader or organisation needs to thread a difficult course through under-regulation (with the exposure of those whom regulation seeks to protect, and damage to the interests which underpin an area of regulation) and over-regulation (with the risk of excessive restriction of the religious interests of individuals and religious organizations, and damage to the interests which religious rights seek to advance).

On the 14^th of February 2019 Oxford Brookes School of Law hosted a workshop exploring the regulation of financial abuse of religious and spiritual capital.

Professor Pauline Ridge (Professor of Law, ANU; Visiting Fellow, Oxford Brookes University) focused on the application of general rules around undue influence in the particular context of religious financing. Her wide ranging discussion of equitable doctrines in Australia and England illuminated the complexities of civil law regulation of what, on their face, are religious donations. While an emphasis on the idea of a fiduciary duty may help resolve these issues in relation to large gifts, problems remain when many small gifts cumulatively become a non-trivial amount. Pauline will continue to develop her ideas in her monograph on religious financing law.

Craig Allen (University research student, Oxford Brookes University) focused on the application of the Fraud Act 2006 s.2 to the same context. His analysis of the general provisions of criminal law in this area, in the absence of a robust body of case law dealing with the religious context, showed problems in relation to both actus reus and mens rea.   Craig will continue to develop his ideas in his doctoral thesis.

A wide ranging discussion from the legal and religious studies academics, and practitioners, present added a more explicit gender dimension to the discussion; consideration of the changing understandings of religious orders about financial issues; the possibilities of shifting analysis into a choronologically extended perspective; and the complexities of assessing harm – and public benefit – in religious contexts.

The Supreme Court decision in Lee v Ashers Baking Company and the religious rights of companies.

The landmark decision of Lee v Ashers Baking Company Ltd and Others [2018] UKSC 49, delivered by a unanimous Supreme Court on the 10^th of October 2018, has been the subject of extensive immediate commentary. I am going to focus here on one issue, particularly relevant to commercial religion, which has not been the focus of other comments.

One issue in the district court was the extent to which the individual persons operating a small business as a limited company, and the company itself, could assert religious rights in the commercial sphere. The lower courts to some extent could avoid the issue, as they found that the natural persons could not successfully claim their religious rights to justify discrimination against a customer. A significant thread of the unanimous judgment of the Supreme Court, delivered on this point by Lady Hale, also avoids the issue, but by finding that there was no need to read down the relevant sexual orientation discrimination laws to take account of Convention rights, as there was no sexual orientation discrimination in the first place (para.36).

In relation to discrimination on the basis of political belief, however, Convention rights were found to be relevant to understanding the Fair Employment and Treatment (Northern Ireland) Order 1998 (pra.48). Religious rights under Article 9, and expression rights under Article 10, were found to entitle a person to refuse to “supply a cake iced with a message with which they profoundly disagreed” (para.55). The religious and free expression rights of the natural persons involved were found to have impacted on  their legal rights in a way not found by the lower courts. As a result, the Supreme Court needed to turn, albeit very briefly, to the Convention rights of companies such as Ashers Baking Company. The relevant passage, in full, is:

“As the courts below reached a different conclusion on this issue, they did not have to consider the position of the company separately from that of Mr and Mrs McArthur. It is the case that in X v Switzerland (Application No 7865/77), Decision of 27 February 1979, and in Kustannus Oy Vapaa Ajattelija Ab v Finland (Application No 20471/92), Decision of 15 April 1996, the European Commission of Human Rights held that limited companies could not rely upon article 9(1) to resist paying church taxes. In this case, however, to hold the company liable when the McArthurs are not would effectively negate their convention rights. In holding that the company is not liable, this court is not holding that the company has rights under article 9; rather, it is upholding the rights of the McArthurs under that article.” (para.57).

This single paragraph touches on some extremely complex issues. The ECHR jurisprudence on this point is notably thin, going no further than the two Commission decisions quoted. What there is does not clearly lead on to the conclusion the Supreme Court reaches. Instead, they are much more clearly in line with a First Tier Tax Tribunal decision.

In Exmoor Coast Boat Cruises Ltd v HM Revenue and Customs Commissioners [2014] UKFTT 1103 (TC) the applicant was a company with a single director and sole shareholder. The company was required to file VAT returns electronically, rather than on paper. A practising member of a religious society or order whose beliefs were incompatible with the use of electronic communications was entitled to an exemption to this requirement. The judge, Mosedale J, found that the appellant did not have beliefs, and that “even if its director’s beliefs were the beliefs to which the legislation referred, [he] is not a practising member of a religious society or order” (para.54). Although finding that the exemption was not engaged, Mosedale J was clear that a for-profit company might have religious rights in some circumstances: “a company has human rights if and to the extent it is the alter ego of a person (or, potentially, a group of people). Therefore, it must be seen as being in the shoes of that person  and must possess the same human rights because any other decision would deny that person his human rights. Therefore, while it is ludicrous to suggest a company has a religion, or private life or family, nevertheless a company which is the alter ego of a person can be a victim of a breach of A9 (the right to manifest its religion) if, were it not so protected, that person’s human rights would be breached” (para 71-2).

Although phrasing the decision as protecting the rights of the natural persons by excluding the legal person from liability, the Supreme Court has opened up important questions about religious rights and for-profit corporations. The debate has tended to focus on whether such corporations can have religious rights. This part of Lee v Asher will no doubt contribute to that debate, but it should also prompt new discussions around the basis for corporations possession of fundamental rights (or in the Supreme Courts terms, when they should be treated as if they had fundamental rights in order to protect the rights of natural persons), and in particular a mature discussion about what religious rights a corporation may be capable of possessing, and how legal actors are to identify the religious beliefs of a corporation. It may also contribute to understanding of the theoretical foundations of company law – in particular has the Supreme Court provided some support for an aggregate theory of legal corporation, where the corporate represents a real interaction, a living existence, over a concession theory where the corporation is simply a creature of positive law?

Guest blog: Public Health Services and Fundamental Rights - Conscientious Objection to Abortion in Italy.

Commercial religion involves the intersection of the commercial and the religious, most notably in employment and in the provision of services. The complexities of this can be seen in particular in relation to public services which the public has a right to access. The Italian case of conscientious objection to abortion performed by state employed doctors illustrates how complex this issue is. The Italian situation has been considered at length by the European Committee of Social Rights, which in 2016 and 2014,  found Italy in breach of provisions of the European Social Charter: the right to health, alone and in conjunction with non-discrimination, the right to work and dignity at work. This blog entry briefly introduces the main themes of this complex problem.

The Law on Abortion in Italy

In Italy interruption of pregnancy is regulated by Lawno. 194 of 1978. The Law was adopted by the Italian Parliament after a decision of the Constitutional Court, delivered in 1975. The Court stated that the criminalization of abortion, when there were no other means of preventing a serious risk for women’s health, breached art. 32 of the Constitution (right to health).  

The Italian legislation on abortion is liberal, as the UN report World Abortion Policies 2013 confirms: it allows interruption of pregnancy on different grounds, depending on the stage of the gestational period. During the first trimester, a woman can have her pregnancy interrupted if there is a serious threat for her physical or mental health, for economic, social or family conditions, due to reasons related to the circumstances under which the conception occurred, or in case of foetal impairment (art. 4). After the first 90 days, abortion can take place only for therapeutic reasons, to save the women’s life or to avoid damage to her psychophysical health, in case of diagnosed pathological processes (art. 6). Where the fetus may be viable and able to survive autonomously outside the uterus, abortion is permitted only if pregnancy or childbirth constitute a serious threat for woman’s life. However, in that case doctors have to take any appropriate action to save the life of the fetus (art. 7, par. 3).    

Conscientious Objection to Abortion   

The Law on abortion also provides for conscientious objection by medical professionals (art. 9): the relevant individuals can refuse to take part in activities “specifically and necessarily aimed at procuring the interruption of the pregnancy”.

This provision is in sync with the subsequent constitutional jurisprudence, which devotes great attention to individual conscience, as shown, for example, by the case-law on conscientious objection to military service. It is also of primary importance given the supreme constitutional values at stake, in particular human life. 

The right to conscientious objection to abortion, however, is not without limits. Mechanisms are in place intended to ensure a constant and timely access to medical care for women: indeed, conscientious objection does not apply in case of urgency (art. 9, par. 5); healthcare institutes have the obligation to guarantee in any case the availability of the service in their sanitary units; Italian Regions have to control the correct implementation of the Law and, moreover, can ask medical personnel to engage in staff mobility procedures in case of a lack of staffs (art. 9, par. 4).    

Challenges Related to the Accommodation of Freedom of Conscience  

The concrete implementation of the conscience clause led to controversial effects and outcomes: through the years, the Law attracted a wide-spreading number of objections. According to the last Report on Interruptionof Pregnancy, delivered each year by the Minister of Health, in 2016 the overall number of objecting doctors in the gynecology and obstetrics departments reached the percentage of 70.7%. 

Year	OVERALL number of OBJECTING GYNECOLOGISTS in Italy
2005	58.7%
2006	69.2%
2007	70.5%
2008	71.5%
2009	70.7%
2010	69.3%
2011	69.3%
2012	69.9%
2013	70.0%
2014	70.7%

Another element makes this Italian phenomenon special: indeed, even though the Law on interruption of pregnancy applies uniformly throughout the Italian territory, the exercise of conscientious objection by Italian doctors produces a fragmented patchwork. The following graph surveys the number of healthcare institutes performing abortion in each Italian Region in 2014. Generalizing the picture, it can be affirmed that even though Italian Regions display different trends, in the South of Italy the number of objections is higher and, consequently, the healthcare institutes providing abortive services are lower.

A Complex Mix: Public Service, Fundamental Rights and Accommodation

There are many questions the Italian situation raises, such as how to make the healthcare system more effective, ensure patients’ best interest and guarantee their right to health in combination with doctors’ fundamental right to freedom of conscience. Accommodating these two rights is particularly challenging, given not only the delicate terrain in which these issues lie but also the design of the accommodation itself.  

On the one hand, patients expect to access in public facilities a range of medical services, including interruption of pregnancy. Accordingly, healthcare institutes are under the obligation to employ staff to offer adequate medical care. At the same time, individual professionals employed by state-run hospitals have the fundamental right to refuse to deliver part of those services.

This illustrates that exercising a fundamental right in the public sector is not only a matter of finding a proper balance between competing interests and rights but may also have an additional cost for the general public revenue.

Some solutions have been experimented with to address the problem, such as the use of external specialists and freelance doctors to perform interruption of pregnancies in the public clinics. In this respect, the non-profit association LucaCoscioni investigated the situation in Veneto, one of the Northeastern Regions. According to the data recorded, the cost of abortive surgeries carried out by non-employed personnel on a weekly frequency is around 3.200 € per month per gynecologist, plus the cost of the anesthesiologist (60 € per hour; 480 € per night).

However, to understand the full picture, it must be added that in Italy interruption of pregnancy in public hospitals or accredited healthcare facilities is free, while the delivery of other type of sanitary services may require citizens to pay a contribution (“ticket”), varying according to the type of medical service or personal income. By contrast, abortion-clinics.eu reports that in Austria an induced abortion, if not covered by the health insurance, costs between 300 € and 850 €, depending on where and by whom the surgery is performed (state hospitals, private clinics, private practitioners).

It seems, therefore, that the Italian abortion policy has a clear public pattern: on the one hand, interruption of pregnancy is performed only in public or accredited healthcare facilities and is free. On the other hand, doctors employed by the state have an exit-way from offering the full range of services their healthcare institutes have the obligation to provide.   

At the moment, it is not so clear how the Italian law will react to the overwhelming predominance of objections by medical professionals. It is still debated what legal solution can reasonably accommodate doctors’ conscience without impairing patients’ rights. However, it is without question that the fundamental rights and liberties involved require a careful reflection on a possible evolution.  

Guest blog by Tania Pagotto, PhD Candidate at the University Ca’Foscari of Venice (tania.pagotto@unive.it).

Cite as Tania Pagotto, “Public Health Services and Fundamental Rights: Conscientious Objection to Abortion in Italy”, in Commercial Religion, 19 June 2017 (http://commercial-religion.blogspot.com/2017/06/guest-blog-public-health-services-and.html).

Hands On Originals and Ashers Baking.

An interesting week in commercial religion.

In the United Kingdom, it has been confirmed that Ashers Baking, and the family who own it, will be taking their case to the Supreme Court, having been unsuccessful in the NI County Court and Court of Appeal. If initial arguments before the Supreme Court are accepted, the case will be heard in October 2017. The Christian Legal Institute is supporting the appeal, which it will be recalled turned on the refusal by a bakers to make a cake celebrating same-sex marriage, on the basis that to do so would be incompatible with their religious beliefs. 

Ashers raises two important issues for commercial religion, only one of which has received much in the way of discussion so far. Firstly, to what extent can claims to manifest religion under ECHR Article 9 be raised by human traders and service providers, despite their working in the commercial sphere? The NI County Court, and NI Court of Appeal, recognised that such claims can be brought, but found restrictions justified by reference to Article 9(2), and in particular the rights of others. This balancing issue is likely to remain an important part of any substantive Supreme Court hearing. Secondly, to what extent can for-profit limited liability companies claim religious rights under Article 9? The County Court very briefly dismissed this, with Brownlie J citing Kustannus Oy Vapaa and Others v Finland as evidence that "it has long been recognized in Convention jurisprudence that a limited company cannot invoke Article 9 rights" (at para.98). Kustannus does not support this, as it is clear that not for profit limited companies with religious objects are capable of invoking Article 9, but it does support the idea that a "profit-making corporate body" cannot invoke Article 9. There is not, however, a strong line of authority on this point either before Kustannus or since. The issue was not discussed at all by the Court of Appeal, and it will be interesting to see if it is developed in the Supreme Court. 

One argument put to the NICA was that Ashers and its owners would, if required to provide the decorated cake requested, be forced to speak contrary to their religious beliefs. The Canadian case of Brockie v Ontario Human Rights Commission [2002] 222 DLR (4th) 174 was discussed, but it was not seen as applying to the UK scene, and to this case in particular. A recent US case, supported by the Becket Fund, has returned to this idea of commercial provision of expressive services. On the 12th of May, in Lexington Fayette Urban County Human Rights Commission and Aaron Baker for Gay and Lesbian Services Organization v Hands On Originals Inc, the Kentucky Court of Appeals distinguished a printing service asked to print slogans on t-shirts from a bakery asked to bake a generic cake which would be used to celebrate a same-sex marriage (citing Craig v Masterpiece Cakeshop Inc, 370 P.3d 272). Kramer CJ for the Court of Appeals stressed the expressive nature of the service requested, printing t-shirts with slogans for the Lexington Pride Festival, concluding "Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship. Thus, although the menu of services HOO provides to the public is accordingly limited, and censors certain points of view, it is the same limited menu HOO offers to every customer and is not, therefore, prohibited by the fairness ordinance". If the distinction drawn between Craig and Hands On Originals becomes important in the Supreme Court, then the icing on the cake may become more than a mere ornament to the case.