THE FORGOTTEN CONSTITUTION
The past 25 years have seen a significant rise in British scholarly interest in the relationship between law and religion. In 1987, when the Ecclesiastical Law Society was founded, what literature there was suggested that law's engagement with religion was residual, fragmentary and incoherent. Ecclesiastical law had survived, but was in urgent need of rejuvenation.Footnote 2 In any case, the unique legal position of the Church of England seemed to sit ill at ease with commitments to religious liberty and equality. For most lawyers it was either a cultural curiosity or a problematic reminder of unfinished business. The main textbooks on constitutional and administrative law were mostly silent on the topic,Footnote 3 and civil liberties texts supported the view that there was not much of interest to be said. Harry Street's brief chapter on freedom of religion was dominated by a discussion of blasphemy law, public education and Sunday trading, with passing mention given to medical and family matters, charity law and conscientious objection.Footnote 4 St John Robilliard's book gave a rather fuller account of a similarly diverse field, with the addition of criminal constraints on unorthodox religious practices and a brief sketch of chaplaincies.Footnote 5 The cases and materials collected by S H Bailey, D J Harris and B L Jones added still further points of fleeting contact with religion, such as those found in employment and immigration law.Footnote 6 The lesson to be drawn from these miscellenea was that where the law engaged with religion it did so largely to preserve a residual Christian establishment, unproblematic only in its insignificance, and to obstruct in questionable ways a range of unconventional beliefs and practices. Constitutional principle had very little to do with it. It was not entirely surprising that, when David Feldman's magisterial treatment of civil liberties appeared in 1993, religious liberty and equality found no systematic place at all.Footnote 7
This neglect was characteristic of the entire twentieth century and finds striking earlier parallels. In his Introduction to the Study of the Constitution, A V Dicey had nothing to say about the relationship between law and religion except to note the ‘forgotten’ criminal law of blasphemy.Footnote 8 He was effectively supported by F W Maitland, who with considerable historical detail recounted the process by which religious toleration had advanced to victory and establishment had retreated to insignificance: ‘The legislation by which disabilities have been imposed and then removed is very complicated, but at the present moment we may, I think, say that religious liberty and religious equality is complete.’Footnote 9 Both Dicey and Maitland reflected the fact that by about 1870 a constitutional settlement had been reached in the relationship between religions and the state.Footnote 10 By the 1920s this settlement was no longer even socially or politically controversial. Litigation died down and there was little more to be said. At least in that respect, British constitutional history had come to an end.
With such a settlement in place, it was easy to overlook the fact that what had been adopted and normalised was a distinctive conception of religious liberty and equality. This conception depended on assumptions that greater cultural diversity would in time come to contest. The clearest expression of the underlying constitutional model can still be found in the Church of Scotland Act 1921, under which that Church is ‘established’.Footnote 11 This short Act ended two centuries of dispute and schism within Scottish presbyterianism about the extent to which the civil magistrate – we might say, secular government – may interfere in the life of the Church. The Act enabled a reunion of the main presbyterian churches to take place and it did so in an unusual way. Instead of changing the law directly, the Act declares to be lawful certain articles drafted by the Church of Scotland itself. These articles set out its constitution in matters spiritual. We should not be misled by that term ‘spiritual’. As well as questions of theology and liturgy, matters spiritual include items as mundane as the disposition of church property and the terms on which its ministers are appointed. Article 4 states that the Church ‘has the right and power subject to no civil authority to legislate and … adjudicate finally in all matters of doctrine, worship, government and discipline’. The Act states that this does not prejudice the recognition of any other church protected in its spiritual functions.Footnote 12 Nor does it affect the jurisdiction of the civil courts in civil matters.Footnote 13
The Church of Scotland Act reflects the principles of religious liberty and religious equality. But it does more than that. It shapes them and gives them content. Religious liberty requires autonomy, or self-government, within a sphere defined as internal to the religion (‘spiritual matters’). Religious equality requires this sphere of autonomy to be available to all. Both liberty and equality point to a principle of secularity: that there is a sphere of civil matters, which the state may regulate in a way that is not religiously distinctive, for the benefit of all. In short, religious liberty and religious equality depend on a separation of Church and state. Precisely because Church and state are separate entities, sovereign in their own spheres, the Act takes the form of a treaty, or a concordat, between them: the Church and its law as against the state and its law. The two accommodate and limit each other.
English law has not yet seen such a clear statement of principle, in respect either of the Church of England or of any other religious body. However, until very recently the principles of religious liberty and religious equality as expressed so neatly in the Church of Scotland Act have consistently characterised developments in English law as well. It is no exaggeration to say that, from the abandonment of the policy of religious uniformity after the revolution of 1688, whenever change in the relationship between law and religion has occurred, it has occurred in this direction. The middle decades of the nineteenth century were formative. They saw a sustained campaign by non-conformist protestants to achieve complete religious liberty and religious equality within the law.Footnote 14 This campaign was powered by the conviction that religion should be voluntary, but that the state is fundamentally coercive. So it meant separating the two: getting the Church of England out of the business of Government and getting Government out of the business of the Church of England. At first, and above all, it meant abolishing religious tests for public office.Footnote 15 It meant creating new civil registration authorities for births, marriages and deaths.Footnote 16 It meant abolishing the remaining civil jurisdiction of ecclesiastical courts in defamation, matrimonial and testamentary causes.Footnote 17 It meant making church rates voluntary.Footnote 18 It meant opening up the ancient universities to students of all religions and none.Footnote 19 It meant supplementing religious oaths in court with secular affirmations.Footnote 20 It meant disentangling parish charities into those for strictly church purposes and those for the wider benefit of the local community.Footnote 21 It meant disestablishing the minority Anglican church in Ireland and Wales.Footnote 22 It meant giving the Church of England the ability to initiate legislation for itself and to become self-governing.Footnote 23 That programme was substantially complete by the early 1870s, and the ensuing decades only served to consolidate it. Hence Maitland's comment.
Against this background, the established Church of England has come to have two quite distinct constitutional functions. The first is the highly visible, but largely symbolic, function of offering a sacred canopy for the state and its monarchy.Footnote 24 The established church represents the embers of Christendom – a Christian monarch ruling over a Christian nation. There are, of course, a few well-known exceptions to the symbolic nature of this element of establishment. Apart from the monarchy, the presence of Lords Spiritual in the upper house is the most egregious, although as early as 1908 a House of Lords Select Committee was considering how this could be pluralised to include other church representatives.Footnote 25 It is important to stress that this aspect of establishment is not reflected in the general law. So in 1917 the House of Lords thought that the argument that it was the policy of the law to discourage atheism and the denial of Christianity had been dead for a generation.Footnote 26 In 1919 they again insisted that the law knew no doctrine of superstitious (that is, false) religion.Footnote 27 Any religion – even the most unusual – could benefit from the legal privileges associated with charitable status. One could argue that specifically ‘Christian law’ survived in the form of blasphemy, but that too was finally swept away in 2008.Footnote 28 The law may be more or less compatible with Christianity; a Christian ethic may still underlie many areas of law; but Christianity as such is no longer ‘parcel of the laws of England’.Footnote 29
The second function of establishment is the quiet insistence on a certain model of co-operation between religions and the state. It is true that religious bodies should be largely autonomous, governed by their own law in their internal affairs, but they also have an interest in some areas of public administration – what might be called areas of concurrent jurisdiction: rites with civil significance, chaplaincies, schools, social welfare provision and participation in formal public discourse.Footnote 30 Again, by the late nineteenth century, there was a general assumption that these points of connection that existed between the Church of England and the state should be available to other religious denominations as well, albeit at times in a context of inevitable Anglican dominance and co-ordination.
Thus the British constitution throughout the twentieth century was characterised by a particular conception of religious liberty and equality. Clearly, in being linked to a residual English establishment it was not a pure form, but it was a rich and a remarkably resilient one.Footnote 31 As in other European states, there was undoubtedly ‘convenience, carelessness and tacit compromise’ in the legal arrangements.Footnote 32 But the conception was not without a certain coherence and plausibility. In some senses it was a Christian conception; in one very important sense it was not. The leitmotif of dual jurisdiction (Church and state as autonomous spheres of law) is characteristic of the Christian political tradition.Footnote 33 So too are concern for the protection of conscience and an interest in education and social welfare. But having struggled to encompass all Christian denominations, and with the eventual assimilation of Judaism to similar models,Footnote 34 the working assumption was that all religions – however one defined that problematic term – could likewise be accommodated. Indeed, in the view of some observers, the combination of establishment with a commitment to liberty and equality understood in these ways even opened up possibilities for other faiths which might otherwise have struggled to gain an entry.Footnote 35
In the last decade or so, the growing scholarly interest in the relationship between law and religion has been strengthened by new laws and an apparent rise in litigation. Yet this has taken place against a background of collective constitutional amnesia. While there is a general commitment to religious liberty and equality in the abstract, the particular conception characteristic of English law has been forgotten.
A MULTICULTURAL HYPOTHESIS
How then are we to explain the recent increase in law, litigation, and law and religion studies? The most obvious explanation lies in the growing acceptance during the 1990s of multiculturalism as a broad political orientation. In outline, multicultural theories of justice reject liberal solutions to problems of cultural diversity, including religious diversity.Footnote 36 Classical liberalism depends upon a clear distinction between private and public spheres of life. The private sphere, secured by civil liberties, is the place in which individuality and diversity can be expressed; by contrast, the public sphere is a place in which diversity is suppressed in the service of a unitary civic identity and pursuit of collective interests. Multiculturalists, however, draw on modern communitarian critiques, and to some extent on earlier romantic and nationalistic critiques of liberalism to re-assert the identity-constituting character of culture. The appropriate response to cultural diversity is not its suppression to the confines of family and private associational life, but its recognition on an equal basis in politics and the workplace as well.
On this basis, multiculturalists could mount a powerful critique of the ways in which English law has handled religious difference.Footnote 37 It was true that, by the start of the twentieth century, English law had come to accommodate the full range of Christian belief and practice, as well as a significant Jewish minority, with reasonable success. However, the accommodation of other religions, growing primarily through immigration in the second half of the twentieth century, had not been as complete or successful. At first, social tensions were conceived primarily in terms of race and addressed through race discrimination law. The religious dimensions of difference were suppressed. But the inadequacy of this construction was exacerbated by the varying degrees to which religion and race can be correlated. From a legal point of view, the decision in Mandla v Dowell Lee exposed the difficulties.Footnote 38 In that case, the House of Lords confirmed that Sikhs, and by implication Jews, were within the protected characteristic of ethnicity for the purposes of race equality law, but that Christians, Muslims and Hindus (among others) were not. The possibility of reconstructing religious prejudice as racial prejudice in specific cases was difficult and often impossible.
The specific flashpoint was the response to the publication in 1988 of Salman Rushdie's Satanic Verses.Footnote 39 The fact that some Muslims refused to see this as a ‘private’ matter of religious difference, and reacted in a highly vocal and even violent manner, was itself a challenge to the dominant liberal mindset. The inability of the existing blasphemy law to provide any protection exacerbated the problem.Footnote 40 Academics and politicians became increasingly aware that, for some minority groups, the religious dimensions of identity were, if anything, even more important than the racial dimensions.Footnote 41 They were certainly far more important than for the nominally Christian majority.
What emerged was a growing awareness of diverse perceptions. For the liberal mainstream, the Christian remnants of English law were attenuated, trivial and gradually receding. They could safely be overlooked. For the Muslim minority, they were significant reminders of a religiously informed public sphere which needed both emphasising and applying to other religious minorities. The refusal of successive governments to approve Muslim schools within the state-funded sector was a signal instance of this: for the majority, Church schools were not really faith schools; for the minority, they were a reminder of historic and continuing privilege. In a related development, the MacPherson Report into the death of Stephen Lawrence emphasised the need to render visible and public the treatment of cultural difference in order to avoid hidden ‘institutional racism’.Footnote 42
The time was therefore ripe for a recognition of the public presence of new religious communities by a formal re-commitment to principles of liberty and equality for all. Multiculturalism effectively became part of New Labour's constitutional reform agenda.Footnote 43 The Human Rights Act 1998 gave further effect to European Convention rights, including the right to freedom of thought, conscience and religion, as well as a subsidiary right to non-discrimination in the enjoyment of Convention rights. The School Standards and Framework Act 1998 created a general structure for the operation of minority faith-based schools, the first of which had also been approved in 1998. The new agenda was well expressed by the Commission on the Future of Multi-Ethnic Britain, established in 1997 by the Runnymede Trust under the chairmanship of Lord Parekh. It reported in October 2000, just as the Human Rights Act came into force. The report emphasised the concepts of cohesion, equality and difference, and among its recommendations included the following on religion and belief:
(1) In all faith communities there should be closer connections between anti-racism and inter-faith relations;
(2) Legislation should be introduced which prohibits direct and indirect discrimination on grounds of religion or belief. A statement of general principles should be drawn up on reasonable accommodation in relation to religious and cultural diversity in the workplace and in schools, and case-study examples of good practice should be provided;
(3) A study should be made of police responses to hate crimes containing a religious component;
(4) A commission on the role of religion in the public life of a multi-faith society should be set up to make recommendations on legal and constitutional matters.Footnote 44
The report was welcomed by the Government, although not all of its recommendations were followed. However, considerable government funding was made available for the support of faith-based consultation bodies. This was picked up in the 2001 election manifesto, after which central and local consultation bodies received increasing funding for advice, advocacy and inter-faith dialogue.Footnote 45 Regional multi-faith forums were established throughout the country. As far as equality law was concerned, the European Union's Treaty of Amsterdam 1997 had empowered the EU to combat discrimination on grounds of religion or belief. In due course, equality provisions in education, employment and occupation, and the provision of goods and services, came to be expanded to embrace discrimination on grounds of religion or belief.Footnote 46 An initial attempt to introduce a religious hate speech offence failed in 2001, although the existing category of racially aggravated offences was expanded to include religiously aggravated offences.Footnote 47 The creation of a new offence of incitement to religious hatred – without abolishing blasphemy law – eventually succeeded in 2006.Footnote 48 Chaplaincies in public institutions became more securely multi-faith. And, for the first time in 150 years, a religious affiliation question was asked in the 2001 census.Footnote 49 Multiculturalism had arrived at last.
The rise of multiculturalism within both political theory and political discourse represents a plausible explanation of the rise of interest in law and religion. New laws which expressly protect religious liberty and equality, or which refer to religions in other ways, inevitably create new disputes. Any rise in litigation can also be explained in this way. So perhaps the changes that appear to be taking place are best explained by the new public recognition of religious minorities. They could be the inevitable consequence of a historic commitment to religious liberty and equality played out against the background of new forms of cultural diversity.
DOUBTING THE MULTICULTURAL HYPOTHESIS
It would be foolish to deny the force of the multicultural hypothesis, but it should nevertheless be approached with caution. Most obviously, at the level of broad political discourse, after the terrorist attacks of 11 September 2001 and 7 July 2005 (‘9/11’ and ‘7/7’) successive governments have distanced themselves from it in the name of national, and liberal constitutionalist, values. And by itself the multicultural hypothesis is not adequate to explain all the legal changes that have been taking place over the last decade. There are three reasons for doubting it: the ineffectiveness of the new legislation, the resurgence of old problems in law and religion, and the phenomenon of illegality by surprise. Each of these can be sketched as follows.
The ineffectiveness of new legislation
Keith Ewing is well known among British public lawyers for his thesis that the enactment of the Human Rights Act 1998 has been futile.Footnote 50 Without commenting on the generality of that thesis, it is at least true that almost every case brought with reference to the religion clauses of the European Convention has failed in British domestic courts.Footnote 51
There have been failures for claimants seeking asylum on grounds of religious persecution,Footnote 52 resisting liability for chancel repairs,Footnote 53 raising claims of conscientious objection to military service,Footnote 54 resisting criminal proceedings for importation of cannabis in connection with Rastafarian rites,Footnote 55 appealing a conviction for a public order offence as a street preacher,Footnote 56 requesting school transport to faith schools,Footnote 57 seeking protection for days off from employment,Footnote 58 refusing to pay tax related to military spending,Footnote 59 preserving mild corporal punishment in private schools,Footnote 60 seeking exemptions from local taxation for churches,Footnote 61 challenging school uniform requirements,Footnote 62 protecting a diseased holy cow from slaughter,Footnote 63 refusing parental consent to a bone marrow transplant,Footnote 64 securing provision for Hindu funeral rites,Footnote 65 preventing judicial sitting on holy daysFootnote 66 and determining the religious upbringing of children.Footnote 67
Whatever the impact on public attitudes, the Human Rights Act 1998 has brought about no discernable shift in the legal regulation of religious belief and practice. The point is not that these cases were wrongly decided; it is simply that the Act has not changed the law. And this is really not surprising. As both European and domestic courts repeatedly remind us, Article 9 only protects manifestations of religious belief and practice; not every act motivated by a religion or belief falls within the scope of protection.Footnote 68 Furthermore, manifestations of religious belief and practice may be limited to secure other public goods.Footnote 69 The balancing of interests necessarily taking place within the context of European Convention rights will tend to reflect socially dominant conceptions of the right balance already expressed within the law. The overriding purpose of the legislation was to ‘bring rights home’,Footnote 70 that is, to ensure that matters that could only be litigated in Strasbourg after domestic remedies had been exhausted could be litigated, and resolved, from the start. Judges have been cautious before developing a case law beyond that of the Strasbourg Court.Footnote 71 It is hardly surprising that the impact of the Act is minimal. In short, the Human Rights Act 1998 opens up the possibility of new grounds of legal argument but carries with it no likelihood of substantive change.
Equality law is now beginning to take over from the Human Rights Act 1998 as the larger cause of increased litigation. Once again, the structure of equality law admits of balancing and the reproduction of conventional compromises. Cases alleging direct discrimination are rare. The courts have drawn a distinction between discrimination on grounds of belief (direct discrimination) and discrimination on grounds of the way in which the belief is manifested (indirect discrimination), which means that in practice the only behaviour caught by absolute ban on direct discrimination is pure prejudice.Footnote 72 Most cases involve employees challenging a provision, criterion or practice that is excessively burdensome for them as religious people.Footnote 73 The question then becomes whether the burden is proportionate, which requires a balancing of the costs and gains of alternative arrangements.
The equality legislation has not been so clearly ineffective. There have been many signal failures, some of which have had a high media profile: Monaghan,Footnote 74 Mayuuf,Footnote 75 James,Footnote 76 Eweida,Footnote 77 McClintock,Footnote 78 Harris,Footnote 79 Azmi,Footnote 80 Ladele,Footnote 81 McFarlane,Footnote 82 Chondol,Footnote 83 Power,Footnote 84 Chaplin,Footnote 85 CherfiFootnote 86 and Johns.Footnote 87 But there have also been wins for religious individuals seeking a greater degree of accommodation from their employers: Fugler,Footnote 88 Williams-Drabble,Footnote 89 Edge,Footnote 90 Estorninho,Footnote 91 Saini,Footnote 92 Watkins-Singh,Footnote 93 NoahFootnote 94 and Thompson.Footnote 95
It is still too early to assess the impact of the religious equality legislation, and in particular to assess whether any change it is bringing about is merely procedural or also substantive. The cases are highly dependent on circumstances: for example, a large employer may easily be able to work around an employee's religious requirements, whereas a small employer may not. It is becoming clear that employers who fail even to consider whether they could accommodate a religious employee commit a wrong. In that sense, the new legislation has given a procedural right to employees to require their employer to give consideration to a request for accommodation; this explains many of the ‘wins’ noted above. On the other hand, some employers have succeeded by showing that they treated a religious claim for accommodation in the same way as they would a non-religious claim. What is not clear is whether the socially accepted, and legally enforced, understanding of which sorts of accommodation can reasonably be required has actually shifted. Perhaps not much of substance has changed here after all. Furthermore, it is possible that a new hierarchy of equalities is emerging, in which religious equality takes a subordinate position.Footnote 96 The new public sector duty to promote equality may be legitimising such a hierarchy.Footnote 97 If this does materialise, equality law as a whole may end up having a detrimental effect on the state's engagement with religious believers.
The resurgence of old problems in law and religion
Both the Human Rights Act 1998 and the Equality Act 2010 make available new causes of action and heads of argument to litigants. As we have seen, these have had little or no effect in shifting the substantive relationship between religions and the law. If they are the flagship components of a new constitutional commitment to multiculturalism, their impact is underwhelming. The second reason for doubting the multicultural hypothesis is an apparent increase in what could be called the ‘permanent core’ of religion cases – cases that have always potentially given rise to litigation, regardless of new formal legal protections for liberty and equality, and regardless of the presence of new religious minorities. Such an analysis is inevitably crude and impressionistic, but it seems as if the new human rights and equality laws only account for (perhaps) half of the reported cases with an obvious religious dimension.Footnote 98 Again, impressionistically, the last few years have seen a shift from the Human Rights Act 1998 to equality legislation as the more common basis of argumentation. This fits with the emerging pattern that some cases based on religious discrimination are succeeding, whereas cases based on human rights are almost always failing.
The remaining cases are staple diet, in that they could have been litigated even had the human rights and equality legislation not been enacted.Footnote 99 They concern, for example, the ownership and control of church property,Footnote 100 judicial oversight of the actions of religious associations, including the decisions of religious tribunals and arbitrators,Footnote 101 questions of the employment status of religious workers,Footnote 102 religious charity registration and regulation,Footnote 103 rating and taxation,Footnote 104 problems of planning and environmental constraints raised by religious premises and practices,Footnote 105 vicarious liability within religious organisations,Footnote 106 the recognition of foreign religious marriages, divorces and wills,Footnote 107 questions of the religious upbringing of children after family breakdown,Footnote 108 questions of medical treatment and medical ethics with a religious component,Footnote 109 problems of conscientious objection,Footnote 110 the criminality of unconventional religious practices,Footnote 111 and defamation, blasphemy and religious hatred.Footnote 112 If one compares that list with the topics covered in St John Robilliard's book, the only obvious candidate for a reduction in legal activity is that concerning Sunday trading laws. After the battles of the early 1990s and the Sunday Trading Act 1994, these have largely been settled.
None of these areas of law is new, nor is the litigation the result of particularly new religious practices. It may be that the apparent increase is merely a result of more comprehensive and accessible reporting, but the presence of a significant increase of cases in the higher courts suggests not. Rather, the increase in litigation suggests a new loss of consensus about the role and significance of religion. It has become less obvious how disputes involving a religious component should be resolved.
Illegality by surprise
The final reason for doubting the multicultural hypothesis is the phenomenon of illegality by surprise. In some cases, religious individuals or groups have been found to be acting unlawfully when the law has not changed and they have been engaging in practices for years without challenge. Four very different examples make the point: Hammond, Percy, JFS and Bideford Town Council.
Hammond's case is not entirely straightforward. Harry Hammond was an elderly street preacher who carried a sign saying ‘Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord’. He came under attack from a group of homosexual activists, was arrested, charged with a public order offence and convicted, and his appeal was dismissed.Footnote 113 His case is not straightforward, because English law has never quite had the courage to adopt wholeheartedly the approach of Field J in Beatty v Gillbanks.Footnote 114 In 1882, in Weston-super-Mare, the Salvation Army were regularly being set upon by the ad hoc ‘Skeleton Army’ for promoting temperance. After being warned by the local magistrates against processing through the streets, they went ahead, with predictable riotous consequences. They were prosecuted and convicted for holding an unlawful assembly. Field J allowed their appeal on the grounds that ‘a man may [not] be convicted for doing a lawful act merely because he knows that his doing it may cause another to do an unlawful act’.Footnote 115 This admirable principle has not always been followed,Footnote 116 but it received recent support from the decision of the Divisional Court in Redmond-Bate v DPP.Footnote 117 Furthermore, the House of Lords subsequently held that the police may only intervene to prevent a breach of the peace if violence is imminent and there is no other way of preventing it.Footnote 118 Where possible, the focus of action should always be on those about to act disruptively. Whatever one makes of Hammond's views or the way he chose to express them, there is little doubt that he was not the primary cause of the disorder.
The law has not changed, but it is the case that one cannot now safely say in public what one could have said a few years ago. One might argue that public order law is an area that is particularly sensitive to shifts in social consensus as to what is acceptable behaviour in public. The law itself does not need to change; it simply supports social mores, and public criticism of homosexual practice has become socially unacceptable. However, the following three cases are clearer examples of surprising shifts in judicial attitude.
In 2005, the House of Lords decided Percy v Board of National Mission of the Church of Scotland.Footnote 119 Helen Percy had resigned under pressure after having had an affair with a parishioner. She wanted to argue unlawful discrimination on grounds of sex on the basis that a male minister would have been more favourably treated. As she went through the Scottish court system the predictable answer came back that this was an internal spiritual matter and no business of the secular courts. But the House of Lords decided by a 4 to 1 majority that an associate minister in the Church of Scotland was appointed under a contract ‘personally to execute any work or labour’ within the scope of the Sex Discrimination Act 1975, section 82(1) and the jurisdiction of the Employment Tribunal. Furthermore, the court rejected the Church's other argument that the claim was within the exclusive spiritual jurisdiction of the Church under the Church of Scotland Act 1921. Whatever the exclusive spiritual jurisdiction of the Church is, it does not cover unlawful discrimination in employment. If the majority of the House of Lords is correct, the Church of Scotland has been subject to the oversight of the secular courts in respect of some (at least) of its ministers since 1975. For 30 years, we never noticed.
In 2009, the Supreme Court decided that the JFS (formerly the Jews' Free School) acted unlawfully in applying a test of matrilineal descent to determine whether a boy was Jewish for the purposes of their admissions policy.Footnote 120 A bare majority of five of the Justices found that the test amounted to direct discrimination contrary to section 1(1)(a) of the Race Relations Act 1976. Since there is no justification for an ethnic or racial test in the law relating to school admissions criteria, the test was unlawful. The other four Justices found only indirect racial discrimination: two of them finding it in proportionate pursuit of a legitimate aim, and thus lawful, and two finding it unjustified. If the majority of the Supreme Court is correct, it has been unlawful for Jewish organisations to apply orthodox tests of identity to restrict access to goods and services for 33 years – and a good case could be made it that it was already unlawful under the Race Relations Act 1968. But, again, we never noticed.Footnote 121
Last of all there is the recent decision of the High Court in the Bideford Town Council case.Footnote 122 The saying of prayers as part of the formal business of a local authority requires statutory authority, which is lacking under the Local Government Act 1972. It is therefore unlawful. Local authorities have always required statutory authority for everything they do; there has never been explicit authority to say prayers so this has always been unlawful. And we never noticed. However, it was not a breach of the individual councillor's human rights – of course, we know by now that religious arguments based on the Human Rights Act 1998 rarely work.
Something is going on here which cannot be explained by the multicultural hypothesis. Christopher McCrudden has commented that the JFS case represents a ‘post-multiculturalism’ in which British anti-discrimination law has come to be used by interventionist courts to promote ‘cosmopolitan, individualistic liberal values’.Footnote 123 Some sort of change is taking place within the legal regulation of religious belief and practice which is rendering visible and problematic aspects of the role and significance of religion that were hitherto invisible and unproblematic.
THREE FEATURES OF THE NEW LAW OF RELIGIONS
We have seen that new general laws extending protection to religious liberty and equality have had little effect on legal outcomes, but that there has also been an apparent general rise in litigation and some surprising instances of conventional practices found to be unlawful. Furthermore, the historic understanding of the legal place of religion in this country is under pressure at three points. This can be seen by reflecting on a shift in the way in which the law treats religion as a matter of conscience, religion as legal system, and religion as a context for public service.
Religion as conscience
The cause of religious liberty has long been connected to the cause of conscience. Religious toleration was introduced in 1689 to give relief to tender consciences, and the close connection between religion and conscience is maintained in the texts of international human rights documents which protect ‘freedom of thought, conscience and religion’.Footnote 124 Nevertheless, it is undeniable that conscience is the weakest partner of this triad, not least because it is only the manifestation of religion which receives explicit protection. Only very recently has the European Court of Human Rights derived a right to conscientious objection to military service from the text of the Convention.Footnote 125
As far as the development of English law is concerned, relief to tender consciences was initially provided by giving legal exemptions to religious congregations and churches, freeing them from obligations to engage in uniform public worship. The model was collective in orientation and distinguished between acceptable and unacceptable dissent. When exemption from oath-taking and military service was introduced, the same model was adopted. Conscientious objection was only available for the benefit of certain specific denominations such as Quakers, Moravians and other Christian brethren.Footnote 126 Not until the late nineteenth century do we find individual exemptions from legal obligation based on conscience as such.Footnote 127 The key examples here were oath-taking,Footnote 128 compulsory military service,Footnote 129 compulsory medical treatment (vaccination)Footnote 130 and compulsory religious education.Footnote 131 As the battle over oath-taking demonstrated, there was considerable hesitation about accepting an extension of protection from the religiously informed conscience to conscience as a non-religious moral commitment.
The period after the Second World War, which coincided with the modern human rights movement, saw a noticeable further individualising of conscience. In modern times, statute law has created conscience-based exceptions for religious individuals in areas such as trades union membership,Footnote 132 participation in abortions and the provision of contraceptive services,Footnote 133 participation in artificial human fertilisation procedures and the handling of embryos,Footnote 134 and the wearing of turbans and ceremonial knives.Footnote 135 These examples fluctuate between older approaches identifying specific privileged groups, exemptions for the religiously informed conscience and exemptions for the individual conscience as personal moral conviction.
But is there a general right to freedom of conscience implicit in English law? No plausible right to conscientious action could give carte blanche to the individual to disobey the law.Footnote 136 Yet the courts have never rushed to expand the categories of conscience either, and it is understandable that judges should be very cautious in wielding a power to dispense with general laws in individual cases.Footnote 137 That would arguably be legislation, not adjudication. However, recent litigation reveals a hardening of judicial attitudes towards the dissenter. The courts have been at pains to stress that religious commitment does not exempt one from the duty to obey the law – and that includes the duty to obey the lawful commands of one's employer. In some of the cases, the judges show some sympathy for individuals whose legal context has changed around them, but there is no attempt to identify a general right of conscience or to balance it with the new legal obligations. One suspects that the vast majority of the judiciary have come to share Lord Hoffmann's opinion in Begum that the law rather contains an ‘expectation of accommodation, compromise and, if necessary, sacrifice in the manifestation of religious beliefs’.Footnote 138 That is diametrically opposed to a conception of the rule of law rooted in individual conscience.
A number of developments reinforce this shift in attitudes. First, there is a willingness on the part of courts to articulate the legitimate grounds for restricting liberty in ways that evade any balancing between competing interests. For example, in banning corporal punishment in private schools that would otherwise have been lawful if administered by parents, Baroness Hale articulated the legitimate aim as protecting the child from ‘institutional violence’.Footnote 139 This effectively builds the outcome into the aim and prevents any balancing between the interests of parents in authorising others to use physical chastisement and the interest of the state in protecting children from harm. A similar move was made by Lord Neuberger MR in Ladele.Footnote 140 Here, by changing the legitimate aim of Islington Borough Council from that of providing ‘effective civil partnership arrangements’ to providing services ‘as an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others’, the need to consider forms of accommodation was avoided. If conscience is to be protected, the focus must remain on practical service delivery, not institutional ethos.
Furthermore, equality law finds it easier to accommodate claims based on collective practice than those based on individual conscience. It is easier to win an indirect discrimination claim on grounds of religion if it is a matter of common knowledge that one's religion requires one to perform the act in question (we all know that Sikh men wear turbans). But if one's religion leaves one free to decide how to manifest it, then one's idiosyncrasy counts for little (Christians do not have to wear a crucifix).Footnote 141 The most prominent issue of conscience in recent years has involved dissenters to emerging views of human sexuality. In this area, courts have shown an even stronger bifurcation between an essentialising view of sexuality and a choice-model of religion that has rendered irrelevant the concerns of those with tender consciences about complicity in behaviour they consider immoral.Footnote 142
It is thus becoming increasingly clear that conscience will only be protected on an issue-by-issue basis if Parliament can be persuaded to grant a specific statutory right. In a constitutional framework which allows the judiciary to interpret law and, if necessary, make declarations of incompatibility in accord with the individual's freedom of conscience,Footnote 143 a tendency to downplay the value of conscience is regrettable. The Human Rights Act 1998 creates a model in which judiciary and legislature collaborate in ensuring the protection of rights. Yet, unless the judiciary are prepared formally to highlight a problem involving minority rights of conscience, the legislature may well not feel the need to address it. Across all institutions of government, religions are ceasing to command respect as independent sources of moral obligation bearing down on the individual believer; they have little weight against the collective judgments of the community expressed through law.
Religion as legal system
In 2008 the Archbishop of Canterbury raised a media storm by suggesting that sharia law might in some limited respects be recognised by the civil legal system.Footnote 144 One of the good things about that storm, which still blows around, is a much greater interest in the use and limits of religious arbitration. What got lost in the debate, however, was the sense in which religions are, or consist partially of, normative systems that need to be brought into relationship with state law. Every well-educated lawyer ought to know that the ecclesiastical law of the Church of England is a semi-autonomous branch of English law.Footnote 145 This detached relationship can clearly be seen in the process for the creation of Measures with the status of Acts of ParliamentFootnote 146 or the use of judicial review to provide oversight of ecclesiastical courts.Footnote 147 What few realise is that the principle of religious group autonomy influenced the law relating to other religious bodies as well. ‘Autonomy’ is used here in the sense of collective self-government, including the ability to make and enforce laws in relation to matters which are in other contexts subject to civil law, rather than the sense of individual agency. Autonomy requires a distinctive attitude on the part of secular courts: religious law needs to be respected as a parallel jurisdiction. This is now under considerable threat.
The threat arises from a general shift in judicial consciousness. The first element of this shift is an unwillingness to treat religions as complex normative networks, and instead to treat them as consisting solely of individual corporations, or juristic persons. Instances of this can be seen both in Lord Nicholls' cavalier dismissal of problems of the legal personality of the Scottish Presbyterian church in Percy,Footnote 148 and the rise of vicarious liability across organised religions.Footnote 149 Continuing respect for the diffuse nature of the Church of England is becoming exceptional rather than normative. But the threat also arises from an overemphasised bifurcation of ‘law’ and ‘religion’. It is possible that the hostility of the public reaction to Archbishop Rowan Williams' lecture derived in part from an assumption that ‘law’ and ‘religion’ should have little to do with each other.Footnote 150 On the one hand, this means that matters of concern to the law are considered independently of any religious perspective;Footnote 151 on the other hand, it means that matters which are clearly ‘religious’ can become non-justiciable.Footnote 152 This is a version of religious liberty, but only liberty in legally irrelevant matters. The dominant human rights framework tends to support this process because it, too, forces a clear distinction between the state and its law, and groups of individuals with their pre-legal rights. Equality law tends to contain exceptions modelled on genuine occupational requirements and calling for proportionality-analysis rather than exemptions for institutions operating under their own law.Footnote 153
The clearest example of the growing bifurcation, and its instability, is in the employment of ministers of religion. By the middle of the nineteenth century, the general legal position was clear. Ministers of religion were private office-holders, who held office subject to the internal law of the religious denomination to which they belonged.Footnote 154 They could not be deprived of office, or any related ‘civil’, ‘material’ or ‘secular’ interest, except in accordance with the rules of the denomination and the precepts of natural justice. In that sense, there was an analogy with public office-holding in the established church. As employment law developed through the twentieth century, religious bodies were shielded from its application. Ministers were subject substantively to their own internal law, under the oversight of secular courts. This was recognised as late as 1986 by the House of Lords, albeit in rather unsatisfactory terms.Footnote 155 Thereafter, collective amnesia and confusion set in, with the rapid rise of an almost irrebuttable presumption in the Employment Tribunals that ministers of religion – of any religion – had no civil legal relationship with their religious body whatsoever.Footnote 156 Since the decision in Percy, however, the courts have been making up for lost time, swinging to the opposite extreme, finding employment relationships according to normal secular tests.Footnote 157 When this is put together with the extension of employment equality law to office-holding, the effect is to bring the relationship between ministers and their religious organisations within the embrace of state law.Footnote 158 There is still the possibility of expressly excluding the secular courts entirely on religious grounds, which is fully in line with the strict law–religion bifurcation noted above.Footnote 159 What has been lost, however, is the historic position of deference on the part of secular courts towards religious law affecting civil interests.
Another example involves the considerable difficulty, expressed in both long-standing case law and academic literature, of how to handle property disputes after schism within a religious body. Historically, English and Scots law have sought to resolve this by reference to two principles: fidelity to the theological position of the original body, and respect for the decisions of its properly constituted organs of government. The fact that there are two principles potentially gives rise to conflict. The worst-case scenario is when the highest decision-taking body decides a matter which seems at first blush to be within its competence, but which happens to have great theological significance for the formation of the denomination in question. This is exactly what happened in Overtoun, and it split the House of Lords.Footnote 160 However problematic it might have been in that case, this approach is an attempt to respect the identity of the religious body as a normative system, to allocate property according to its law.
It is now questionable whether this is still the position of English law. The understandable unwillingness of the courts to unravel complex questions of religious group identity and authority coupled with an expanded cy-près jurisdiction presents a tempting opportunity to distribute assets on a common-sense basis such as proportionality to relative group size.Footnote 161 A recent case also hints at the adoption of a formalistic reliance on the strict terms of trust deeds.Footnote 162 If these approaches take root, religious law will cease to have significance in the allocation of assets. By contrast, Scottish courts maintain the older approach.Footnote 163
One further example will be sufficient to make the point.Footnote 164 On the establishment of the modern Charity Commissioners in 1853, religious groups were almost entirely exempt from their oversight. In those days it was thought quite inappropriate for government to get entangled in the financial affairs of religions. The fundamental reforms carried through by the Charities Act 1960 did not alter the basic policy that, where adequate oversight was provided by a religious denomination, the Charity Commissioners were excluded.Footnote 165 However, a Strategy Review Unit report of July 2002 recommended the staged abolition of these exceptions, not least because non-Christian religions did not have the necessary internal accountability structures.Footnote 166 The Government agreed. The register was a national database of all charities and an important element of accountability. Regulatory oversight through annual monitoring was justified. There should be no ‘arbitrary preference’ for older Christian denominations.Footnote 167 The process of bringing the finances of religions under the oversight of the state is not yet completeFootnote 168 but, when it is, the idea of religious self-government will have been further eroded.
In short, the idea that religions command respect on the part of secular governmental institutions because they consist of, or contain, autonomous systems of law is being lost in the inexorable rise of a dominant state–individual paradigm and the embrace of state regulation.
Religion as a context for public service
The third area of change is in religion as a context for public service. The later nineteenth-century separation mentality between Church and state did not result in a narrow private conception of spirituality as opposed to a broad notion of state welfare, precisely because social welfare was so obviously a religious function. But as the welfare state grew through the twentieth century, the separation mentality survived, in a model of co-ordination. So chaplaincies in prisons and hospitals were conceived as outposts of the churches they represented, not as state spiritual functionaries. Within education, religious education (instruction and worship) was considered detachable from ‘secular education’ and subject to its own rules.Footnote 169 Parts of the welfare state were the state's business; other parts were delivered by voluntary religious bodies and organisations.
Under New Labour, this model collapsed, and the provision of welfare came to be treated in typical ‘third way’ fashion as provided privately but regulated publicly. So there has been a new openness to faith-based welfare provision, but the terms on which it is offered have been substantially those of the public sector, with its norms of non-discrimination on grounds of religion. This must be seen in the light of a much broader change: the removal of the presumption of public benefit for charities advancing religion. Under the Charities Act 2006, it is no longer to be presumed that the advancement of religion or any other charitable purpose confers a public benefit.Footnote 170 Of course, after an initial flurry of consultation, matters have settled down more or less where they were: the Charity Commission is not suddenly going to start finding large numbers of religious charities non-charitable. But the removal of the presumption of public benefit has triggered a view that religion itself is not publicly beneficial unless it satisfies some further, non-religious, criterion.
This can be seen in the 2008 statutory guidance of the Charity Commission, although critical responses to the draft guidance led to more muted expressions in the final version.Footnote 171 The guidance gives the impression that religions are morally suspect, and only allowed to be ‘discriminatory’ if they are open and clear to others about the fact.Footnote 172 Social welfare should be limited to activities required by ‘specific obligations’ of the religion and should be disconnected from proselytism.Footnote 173 Worst of all, religion is pressed into the service of a secular conception of ‘public interest’. This has been achieved by recasting the older cases on public access to religion as cases on ‘advancement’ and then requiring an additional demonstration of ‘public benefit’ in terms of a beneficial moral impact on society. For example, it has been suggested that it is no longer sufficient to show that a place of worship is open to the general public. Rather, one needs to satisfy an additional public impact test. The religious worship taking place must make an empirically verifiable positive moral contribution to society as a whole. One comes out of church a better person. This renders what the case law only ever treated as a supplementary test as a necessary one in all cases.Footnote 174
So the shift here is a complex one. Instead of the state seeing religions as providing distinctive public services according to their own ethos and conception in a way that is co-ordinated with state provision, religions have been brought within the embrace of the state, but at the same time made subject to its agenda and values. The most egregious example of this is the insistence that Roman Catholic adoption and fostering agencies must adopt policies treating same-sex couples on equal terms with married couples.Footnote 175
TOWARDS A NEW SECULARISATION THESIS
Far from reflecting a commitment to multicultural diversity, recent legal developments reveal a fundamental shift in the law's attitude towards religions. Religions command decreasing respect as grounds of conscientious action, secular courts are becoming less deferential to religious law, and the scope for religions to offer public services in accordance with their own ethos is reducing. What these developments have in common is a trivialisation of religion. Of course, a liberal society is not anti-religion; that would be to accord it a significance that it does not intrinsically have. There is still freedom of religion. But because religion has no publicly cognisable weight, the claims of conscience, the claims of systems of religious law, the claims of alternative religious ethics of care and visions of social flourishing must all give way to the homogeneous and ‘neutral’ conception of the common good as expressed through the law of the state.
It seems, then, that in addition to the multicultural hypothesis considered above we need a new secularisation thesis. In his recent monumental work on secularism, Charles Taylor has suggested three distinct meanings to be given to that term.Footnote 176 In the first sense, secularisation refers to the emptying of certain public spaces of God. Politics, or the economy, have ceased to have a God-reference. In a similar way, José Casanova has argued that the core of secularisation theory lies in social structural differentiation.Footnote 177 This process has been visible within the law for a very long time indeed. The formation of the modern welfare state in the first half of the twentieth century was a secularising move, in that it removed the provision of many welfare functions from largely religious voluntary endeavour.Footnote 178 But the nineteenth-century campaign to separate Government from the established Church was also a secularising move, as indeed was the dissolution of the monasteries and the re-formation of Elizabethan charitable endeavour centuries beforehand. In fact, secularisation in this sense is at least in part a product of Christian political theology, with its ‘doctrine of the two’.Footnote 179 Secularism in Taylor's first sense has been with us for a long time and can be summed up in the phrase ‘separation of Church and state’. Symbolic remnants aside, it has long been a recognisable feature of the British constitution.
Secularisation in Taylor's second sense is simply the falling off of personal religious belief and practice. This is a familiar process and has no direct legal expression, although it creates the cultural conditions under which secularisation in other senses can occur. In his third sense, Taylor is trying to capture the ways in which ‘faith, even for the staunchest believer, is one human possibility among others’.Footnote 180 Twenty-first century secularisation reduces the religious claim to authority over the life of the individual or the community to a matter of mere choice. Or, rather, it cannot see religious authority as anything other than constructed by the believer, and more or less capable of reconstruction. This has a significant impact on the way in which the law understands religion.
The difference between Taylor's senses of secularism points to an important distinction within the proper constraints of legal reasoning. Proponents of ‘public reason’ argue about the extent to which ‘religious reasoning’ is appropriate in the public sphere.Footnote 181 Although few would argue for a rigorous exclusion of religious-based arguments in informal public settings, some would exclude it when it comes to the process of legislation, or at any rate in setting the constitutional foundations of a pluralistic state.Footnote 182 Wherever one draws the line, there is substantial agreement that legal reasoning is quintessentially public and obliged to avoid religious-based arguments.Footnote 183 However, there is a dangerous ambiguity here, which turns on the (second-order) reason for excluding religious-based reasoning. Why should a court not rely on a religious reason in justifying a decision? One answer refers to institutional propriety: a court of law is not the sort of institution to determine and apply religious requirements. Another answer refers to rational persuasiveness: religious reasons are not, ultimately, rational. This distinction is the difference in legal terms between Taylor's first and third senses of secularism.
The practical difference between these two second-order reasons is that, under the first, the court can still recognise the power of religious reasons indirectly, by accepting their authority in non-state institutional settings. The fact that God has laid down some rule is irrelevant for a state court in a pluralist society, but it is a very good reason for a church to follow that rule. If a religious believer can demonstrate a commitment to a religious precept with sufficient coherence and cogency, the court can ‘rely’ on that reason in the sense of recognising its power in the life of the believer, and securing the right of the believer to act on that reason. But if religious reasons are not, ultimately, rational, there is no reason for anyone to follow them in any context, or to respect those who do. Their purported rational force is just a whim.
The slippage from institutional restraint to rational rejection was expressed with clarity by Lord Justice Laws in McFarlane v Relate Avon Ltd. In this case, his lordship contrasted the ‘objective grounds’ of the law with the ‘subjective opinion’ of religious believers, ‘incommunicable by any kind of proof or evidence’.Footnote 184 The effect is to turn religion into another hobby. One can devote one's spare time, energy and money to it; one can meet with other like-minded people, set up clubs and societies, network, produce literature, employ people, buy property, try to persuade others how wonderful it is, introduce one's children to it, run holiday camps promoting it; and the law will even treat all this activity as publicly beneficial. One can be very religious, if one feels like it. But the law need make no space for the idea that there might actually be a God, who might really be calling people into relationship with himself, who might make real demands on his worshippers. Religion thus acquires all the moral weight of stamp-collecting or train-spotting.Footnote 185
Of course, the modern state is faced with a major political problem in the diversity of competing views of religious truth. Laws LJ was absolutely correct in asserting that the law cannot simply adopt or privilege the views of one religious group, however traditional those views might be. However, the way in which the British constitution came to cope with religious diversity was not by drawing a distinction between the individual's ‘right to hold and express religious beliefs’ on the one hand and the ‘eschew[al of] any protection of such a belief's content in the name only of its religious credentials’ on the other.Footnote 186 Rather, protection came about through a consensual settling of different institutional spheres of authority: in other words, through a process of secularisation in Taylor's first sense.Footnote 187 Indeed, the history of the protection of conscience in the law can be seen as the slow individualising of collective religious self-government, and the role of religions in education and welfare as collaboration by mutual consent in fields over which neither ‘Church’ nor ‘state’ could plausibly claim exclusive jurisdiction. The presence of an established Church of England served both to secure such a settlement, and to obscure its real nature.
The effect of a shift to Taylor's third sense is to render such divisions of authority vulnerable. The law ceases to recognise any real cost to religious believers as a result of state intervention. The longer-term consequences of this development will not only be to cast doubt on the remaining vestiges of Anglican establishment; it will also render religious liberty and equality vulnerable. For the universal march of ‘proportionality’ and ‘balancing’ in judicial attempts to manage clashes of interest will only secure liberty and equality if the claims of religious people have sufficient weight.Footnote 188 Ensuring the weight of religious claims not only requires an appreciation of their social and moral value; it requires institutional anchoring in the recognition of a quintessentially religious domain – a core field – which is important enough to be immune from state interference. It requires religions and the state to be thought of, in some sense, as coequal in law. The confidence of the new secularism in the superficial and unreasoned nature of religion renders it ultimately less able to tolerate the growing diversity of British society. For, as a solution to the fundamental problem of settling the terms of peaceful and fair coexistence in a society of competing rationalities, the new secularisation of the British constitution is deeply implausible.
