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The Secularisation of the British Constitution

  • Julian Rivers (a1)
Abstract

In recent years, the relationship between law and religion has been subject to increased scholarly interest. In part this is the result of new laws protecting religious liberty and non-discrimination, and it may be that overall levels of litigation have increased as well. In all this activity, there are signs that the relationship between law and religion is changing. While unable to address every matter of detail, this article seeks to identify the underlying themes and trends. It starts by suggesting that the constitutional settlement achieved by the end of the nineteenth century has often been overlooked, religion only appearing in the guise of inadequately theorised commitments to individual liberty and equality. The article then considers the role of multiculturalism in promoting recent legal changes. However, the new commitment to multiculturalism cannot explain a number of features of the law: the minimal impact of the Human Rights Act 1998, the uncertain effect of equality legislation, an apparent rise in litigation in established areas of law and religion, and some striking cases in which acts have been found to be unlawful in surprising ways. In contrast, the article proposes a new secularisation thesis. The law is coming to treat religions as merely recreational and trivial. This has the effect of reducing the significance of religion as a matter of conscience, as legal system and as a context for public service. As a way of managing the ever-deepening forms of religious diversity present within the United Kingdom, such a secularisation strategy is implausible.1

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1 This article is based on a lecture delivered at Emmanuel College, Cambridge, on 3 March 2012, at a conference to celebrate the 25th anniversary of the foundation of the Ecclesiastical Law Society. I am grateful to Professor Mark Hill QC, Professor Ian Leigh and an anonymous reviewer for their comments on an earlier draft. The usual disclaimers apply.

2 It was not even clear how far the term ‘ecclesiastical law’ could extend beyond its core domain of the law of the Church of England, a categorisation which is itself imprecise. Its survival was secured not least by a title in Halsbury's, Laws of England (fourth edition, vol 14, London, 1975). The substantial restatement 36 years later, which wisely refuses to deal with ‘other religious denominations’ in a mere 25 pages, is characteristic of the growth of scholarship in the field. For a substantial bibliography of the last 25 years, see Sandberg, R, ‘Silver Jubilee bibliography’, (2012) 14 Ecc LJ 148160, 470–471.

3 Wade, E and Bradley, A, Constitutional and Administrative Law (tenth edition, London, 1985) only mentioned Lords Spiritual, the disqualification of episcopally ordained clergy from sitting in the House of Commons and the loss of ecclesiastical jurisdiction on the part of the Judicial Committee of the Privy Council. Phillips, O Hood, Constitutional and Administrative Law (seventh edition, London, 1987) did little better: one short page notes religious restrictions on the monarch and a few ethnic minority exemptions. Street, H and Brazier, R, De Smith's Constitutional and Administrative Law (fifth edition, Harmondsworth, 1985) contained scattered references to the UK's established and disestablished churches, but no systematic treatment of freedom of religion.

4 Street, H, Freedom, the Individual and the Law (Harmondsworth, 1963). Subsequent editions changed little in this respect.

5 Robillard, St J, Religion and the Law: Religious liberty in modern English law (Manchester, 1984).

6 Bailey, S, Harris, D and Jones, B (eds), Civil Liberties: cases and materials (London, 1980).

7 Feldman, D, Civil Liberties and Human Rights in England and Wales (Oxford, 1993).

8 First published 1885. See eighth edition (London, 1915), pp 240–242. Strictly speaking, Dicey also noted the disestablishment of the Church of Ireland as a demonstration of Parliament's sovereignty (pp 63–64) and the subjection of the clergy to ordinary law (p 306, n 2).

9 Maitland, F, The Constitutional History of England (Cambridge, 1908), p 520. The lectures were delivered in 1887–1888 and were not originally intended for publication.

10 For an outline of the historical development, see Rivers, J, The Law of Organized Religions: between establishment and secularism (Oxford, 2010), ch 1.

11 The term ‘established’ is not unproblematic. See C Munro, ‘Does Scotland have an established church?’, (1997) 4 Ecc LJ 639–645. Strictly speaking, the relevant legislation includes the Church of Scotland (Property and Endowments) Act 1925. For historical background, see Lord Rodger, of Earlsferry, The Courts, the Church and the Constitution: aspects of the disruption of 1843 (Edinburgh, 2008).

12 Church of Scotland Act 1921, s 2.

13 Ibid, s 3.

14 Larsen, T, Friends of Religious Equality: non-conformist politics in mid-Victorian England (Woodbridge, 1999). The word ‘campaign’ is used regularly by Larsen to express the organised and systematic nature of the non-conformist programme.

15 The Dissenting Deputies, which had been formed in 1732, finally achieved success with the amendment of the Test and Corporation Acts in 1828. The Roman Catholic Relief Act followed in 1829, and the Religious Disabilities Act in 1846.

16 Births, Deaths and Marriages Registration Act 1836.

17 Defamation Act 1855; Divorce and Matrimonial Causes Act 1857; Probates and Letters of Administration Act 1857. See Outhwaite, R, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge, 2006).

18 Compulsory Church Rate Abolition Act 1868.

19 The process started in 1854, was substantially carried through in the University Tests Act 1871 and completed in the Oxford and Cambridge Act 1877.

20 This process also started in 1854 and culminated in the Oaths Act 1888. See Braithwaite, C, Conscientious Objection to Compulsions under the Law (York, 1995), ch 1.

21 Local Government Act 1894.

22 Irish Church Act 1869; Welsh Church Act 1914.

23 Convocation started meeting again from 1850s; the key point of transition occurred in the constitution of the Church Assembly in the Church of England Assembly (Powers) Act 1919 with power to legislate by measure. Later developments in the same direction include the reconstitution of the Church Assembly as the General Synod under the Synodical Government Measure 1969 with additional powers to legislate by canon, the Church of England (Worship and Doctrine) Measure 1974 and the formation of the Crown Appointments (later Nominations) Commission.

24 The term, ‘sacred canopy’ is Peter Berger's. See The Sacred Canopy: elements of a sociological theory of religion (New York, 1990). For the legal elements, see I Leigh, ‘By law established? The Crown, constitutional reform and the Church of England’, (2004) PL 266–273.

25 House of Lords Select Committee on the House of Lords, Report (1908), paras 20–21, reproduced in part at (1953) 7 Parliamentary Affairs, 140, 142.

26 Bowman v Secular Society [1917] AC 406.

27 Bourne v Keane [1919] AC 815.

28 Criminal Justice and Immigration Act 2008, s 79. See R Sandberg and N Doe, ‘The strange death of blasphemy’ (2008) 71 MLR 971–986. Perceptions differ as to its twentieth-century significance. As we have seen, Dicey thought that it had been ‘forgotten’, and the success of the prosecution in R v Lemon [1979] AC 617 came as a surprise to many. However, Wingrove v UK App no 17419/90 (ECtHR, 25 November 1996) (1996) 24 EHRR 1, showed its continued operation in film censorship. See, generally, Hill, M and Sandberg, R, ‘Blasphemy and human rights: an English experience in a European context’, (2009) 4 Derecho y Religion 145159.

29 Taylor's Case (1675) 1 Vent 293, (1675) 86 ER 189.

30 Rivers, The Law of Organized Religions, chs 6–10.

31 Typologies of Church–state relations can be found, inter alia, in Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2005), ch 3; Temperman, J, State–Religion Relationships and Human Rights Law (Leiden, 2010), part I.

32 The phrase is drawn from Sajó, A, ‘Preliminaries to a concept of constitutional secularism’, (2009) 6 International Journal of Constitutional Law 615.

33 Berman, H, Law and Revolution: the formation of the Western legal tradition (Cambridge, MA, 1983); O'Donovan, O, The Desire of the Nations: rediscovering the roots of political theology (Cambridge, 1999).

34 Until the eighteenth century, and with some exceptions, Jews were treated largely as if they were aliens, ie outside the scope of the law but under royal protection. The nineteenth-century assimilation involved both emancipation and the creation of protestant (Board of Deputies) and episcopal (Chief Rabbi) institutional structures.

35 See Sacks, J, The Persistence of Faith: religion, morality and society in a secular age (London, 1991), p 61, and many of the essays in Modood, T (ed), Church, State and Religious Minorities (London, 1997).

36 The literature is large. See, for example, Kymlicka, W, Liberalism, Community and Culture (Oxford, 1989); Kymlicka, W, Multicultural Citizenship: a liberal theory of minority rights (Oxford, 1995); Parekh, B, Rethinking Multiculturalism: cultural diversity and political theory (Basingstoke, 2000). For a vigorous defence of liberal approaches, see Barry, B, Culture and Equality: an egalitarian critique of multiculturalism (Cambridge, 2001).

37 See Poulter, S, Ethnicity, Law and Human Rights: the English experience (Oxford, 1998).

38 [1983] 2 AC 548.

39 For reflection on the longer-term impact, see Herbert, D, Religion and Civil Society: rethinking public religion in the contemporary world (Aldershot, 2003), ch 6.

40 R v Bow Street Magistrates Court ex parte Choudhury [1991] QB 429.

41 Ceri Peach is among the commentators who point out the gradual shift from ‘colour’ to ‘race’ to ‘ethnicity’ to ‘religion’ in British discourse about minorities. Peach, C, ‘Muslims in the UK’ in Abbas, T (ed), Muslim Britain: communities under pressure (London, 2005).

42 The Stephen Lawrence Inquiry, Cm 4262-I (1999).

43 The phrase ‘Britain is a multiracial and multicultural society’ only appeared in New Labour's 1997 Election Manifesto under the heading of public disorder, but was nonetheless a clear marker of the changed attitude.

44 The Future of Multicultural Britain (The Parekh Report) (London, 2000), ch 17. The new pluralism was also expressed in the Millennium Dome's ‘Faith Zone’.

45 Account in Rivers, The Law of Organized Religions, pp 296–305. The location of responsibility for religious matters within Government has been remarkably peripatetic.

46 Employment Equality (Religion or Belief) Regulations 2003, Equality Act 2006, now consolidated in the Equality Act 2010.

47 Crime and Disorder Act 1998, ss 28–32, as amended by the Anti-terrorism, Crime and Security Act 2001.

48 Public Order Act 1984, pt IIIA, inserted by the Racial and Religious Hatred Act 2006.

49 The question on religion is the only non-compulsory one; commentators generally accept that under the European Convention individuals have a right not to reveal their religious beliefs if they do not wish to do so.

50 K Ewing, ‘The futility of the Human Rights Act’, (2004) PL 829–852; also K Ewing, ‘The continuing futility of the Human Rights Act’, (2008) PL 668–693, and Ewing, K, Bonfire of the Liberties (Oxford, 2010).

51 The exceptions would appear to be: R (K) v Newham LBC [2002] EWHC 405 (Admin) (local authority obliged to take account of parents' religious preference for single-sex education in allocating school places); Re Christian Institute's Application for Judicial Review [2008] NI 86 (regulations prohibiting harassment on grounds of sexual orientation over-extensive); and R (Bashir) v Independent Adjudicator [2011] HRLR 30 (fasting prisoner unable to provide an adequate urine sample for drug-testing had not failed to obey a lawful order).

52 R (Ullah) v Special Adjudicator [2004] 2 AC 323.

53 Aston Cantlow and Wilmcote with Billesley PCC v Wallbank [2004] 1 AC 546.

54 Khan v Royal Air Force Summary Appeal Court [2004] HRLR 40; R v Lyons (Michael Peter) [2012] 1 Cr App R 20.

55 R v Andrews (Reuben Phillip) [2004] EWCA Crim 947.

56 Hammond v DPP [2004] EWHC 69 (Admin).

57 R (R) v Leeds City Council [2005] EWHC 2495 (Admin).

58 Copsey v WWB Devon Clays Ltd [2005] ICR 1789.

59 R (Boughton) v HM Treasury [2006] EWCA Civ 504.

60 R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246.

61 Gallagher (Valuation Officer) v Church of Jesus Christ of Latter Day Saints [2008] 1 AC 1852.

62 R (Begum) v Denbigh High School Governors [2007] 1 AC 100; R (Playfoot) v Millais School Governing Body [2007] HRLR 34.

63 R (Swami Suryananda) v Welsh Ministers [2007] EWCA Civ 893.

64 NHS Trust v A (a child) [2008] 1 FLR 70.

65 R (Ghai) v Newcastle City Council [2011] QB 591. It should be noted that the Court of Appeal found that there was no legal obstacle in the way of a local authority providing facilities that would satisfy the claimant's desire for an open-air cremation.

66 Khan v Vignette Europe Ltd [2010] UKEAT 0134/09.

67 Re N (A Child) (Religion: Jehovah's Witness) [2012] Fam Law 402.

68 Consistent case law from Arrowsmith v United Kingdom (1981) 3 EHRR 218 onwards. As the recent judgment in Bayatyan v Armenia (2012) 45 EHRR 15 shows, the boundary between ‘mere motivation’ and ‘protected manifestation’ is fluid.

69 See ECHR, Art 9, para 2. Intriguingly, national security is not included: Nolan and another v Russia App no 2512/04 (ECtHR 12 February 2009), 53 EHRR 29.

70 See Home Office, Rights Brought Home, Cm 3782 (October 1997), especially paras 1.14–1.17.

71 This controversial phenomenon has been subject to a recent vigorous exchange in Public Law. See Lord Irvine of Lairg, ‘A British interpretation of Convention rights’, (2012) PL 237–252; and P Sales, ‘Strasbourg jurisprudence and the Human Rights Act: a response to Lord Irvine’, (2012) PL 253–267.

72 This line of argument starts with the judgment in Ladele v Islington LBC [2010] 1 WLR 955 at paras 35–37.

73 Equality Act 2010, s 19.

74 Monaghan v Leicester YMCA [2004] UKEAT 4831/24 (no discrimination in direction to employee to refrain from attempts to convert clients to Christianity).

75 Mayuuf v Governing Body of Bishop Challoner Catholic Collegiate School, ET case no 3202398/04 21 December 2005 (no discrimination in refusal to allow time off for Friday prayers).

76 James v MSC Cruises Ltd, ET case no 2203173/05 (no discrimination in making Seventh Day Adventist work occasional Saturdays).

77 Eweida v British Airways Plc [2010] EWCA Civ 80 (no discrimination in refusal to accommodate jewellery cross worn by air hostess).

78 McClintock v Department of Constitutional Affairs [2008] IRLR 29 (no discrimination in failing to accommodate magistrate who refused to place children for adoption with same-sex couples).

79 Harris v NKL Automotive Ltd [2007] UKEAT 0134/07 (no discrimination in refusing to permit Rastafarian driver to wear dreadlocks).

80 Azmi v Kirklees MBC [2007] ICR 1154 (no discrimination in refusing to allow teaching assistant to wear a full-face veil).

81 Ladele v Islington LBC [2009] EWCA Civ 1357 (no discrimination in refusing to accommodate registrar unwilling to celebrate civil partnerships).

82 McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 (no discrimination in refusing to accommodate counsellor refusing to offer directive sexual counselling to same-sex couples).

83 Chondol v Liverpool City Council [2009] UKEAT 0298/08 (no discrimination in dismissing a social worker for evangelising clients and providing a bible).

84 Power v Greater Manchester Police Authority [2010] UKEAT 0434/09 (no discrimination in dismissal of Spiritualist for inappropriate distribution of materials).

85 Chaplin v Royal Devon & Exeter Hospital NHS Trust, ET case no 1702886/2009 (no discrimination in redeployment of nurse for wearing crucifix).

86 Cherfi v G4S Security Services Ltd [2011] UKEAT 0379/10 (no discrimination in refusing to accommodate security guard's request for time off for Friday prayers).

87 R (Johns) v Derby City Council [2011] EWHC 375 (Admin) (no discrimination in taking account of potential foster parents' views on homosexuality).

88 Fugler v Macmillan-London Hair Studios Ltd, ET case no 2205090/04 (discrimination in failure to consider whether staffing needs could be met while also allowing employee time off for Yom Kippur).

89 Williams-Drabble v Pathway Care Solutions Ltd, ET case no 2601718/04 (discrimination in imposition of Sunday shifts on employee who had made clear at interview that she could not work on Sundays).

90 Edge v Visual Security Services Ltd, ET case no 1301365/06 (discrimination in failure to consider alternative arrangements to enable Christian employee to avoid Sunday working).

91 Estorninho v Zorans Delicatessen, ET case no 23014871/06 (discrimination in instructing a Roman Catholic chef to work on Sundays without considering alternatives).

92 Saini v All Saints Haque Centre [2008] UKEAT 0227/08 (harassment on religious grounds includes cases in which an employee is unwillingly caught up in an employer's discriminatory action towards others).

93 R (Watkins-Singh) v Aberdare Girls' High School Governors [2008] EWHC 1865 (Admin) (discrimination in refusal to permit Sikh bangle in school).

94 Noah v Desrosiers, ET case no 2201867/07 (discrimination in refusing to employ Muslim wearing headscarf in hairdresser's salon).

95 Thompson v Luke Delaney George Stobbart Ltd [2011] NIFET 00007 11FET (discrimination in requiring Jehovah's Witness to cover Sunday shifts when other employees were available).

96 L Vickers, ‘Religious discrimination in the workplace: an emerging hierarchy?’, (2010) 12 Ecc LJ 280–303.

97 Equality Act 2010, s 149. See further, Rivers, J, ‘Promoting religious equality’, (2012) 1 Oxford Journal of Law and Religion (forthcoming), currently available at http://ojlr.oxfordjournals.org/content/early/2012/01/12/ojlr.rwr025.full.pdf+html, accessed 14 June 2012.

98 The most accessible resource is the excellent database of cases maintained by the Centre for Law and Religion at Cardiff on behalf of the Law and Religion Scholars Network: http://www.law.cf.ac.uk/clr/networks/lrsncd.html, accessed 14 June 2012. It now has nearly 200 cases summarised, mostly from the last decade. The selection is in no way scientific – immigration and asylum cases tend not to be included, nor are most consistory court cases.

99 Strictly speaking one needs to distinguish between cases that could not plausibly have been pleaded in the absence of the new human rights or equality legislation, and cases that could have been pleaded, and in which the human rights or equality argument was subsidiary. Some, at least, of the cases listed below involve litigants reopening old points of law in the light of the new laws.

100 Dean v Burne [2009] EWHC 1250 (Ch); Southampton City Council v Southampton Medina Mosque Trust Ltd [2010] EWHC 2376 (Ch); White v Williams [2010] EWHC 940 (Ch); Kings v Bultitude [2010] EWHC 1795 (Ch); Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) 2011 S.L.T. 1213; Re Presbyterian Church in Ireland Trusts [2011] NICh 4.

101 Musawi v RE International (UK) Ltd [2008] 1 All ER Comm 607; Kohn v Wagschal [2007] 2 CLC 720.

102 Representative Body of the Church of Ireland v Frazer, ET case no PW 27/2004; New Testament Church of God v Stewart [2008] ICR 282; Preston (Moore) v President of the Methodist Conference [2012] ICR 432; MacDonald v Free Presbyterian Church of Scotland [2010] CSOH 55; Sholl v PCC of St Michael and All Angels, ET case no 2330072/2010.

103 Re Sacred Hands Spiritual Centre [2006] WTLR 873; Re Gnostic Centre, Charity Commission Decision 16 December 2009; Re The Druid Network, Charity Commission Decision, 21 September 2010.

104 Ebury v Church Council of the Central Methodist Church [2009] RA 239.

105 R (Bello) v Lewisham LBC [2004] 2 PLR 1; R (Hackney LBC) v Rottenberg [2007] Env LR 24; R (Umar) v Secretary of State for Communities and Local Government [2009] EWHC 1770 (Admin).

106 M v Hendron [2007] SC 556; Raggett v Society of Jesus Trust [2009] EWHC 909 (QB); Maga v Birmingham Roman Catholic Archdiocese Trustees [2010] 1 WLR 1441; JGE v English Province of our Lady of Charity [2012] 2 WLR 709; Various Claimants v The Catholic Child Welfare Society [2010] EWCA Civ 1106.

107 Sulaiman v Juffali [2002] 1 FLR 479; KC v Westminster City Council [2009] Fam 11; El Gamal v Bin Saeede Al Maktoum [2011] EWHC 3763 (Fam); Hudson v Leigh [2009] 2 FLR 1129; Official Solicitor to the Senior Courts v Yemoh [2011] 1 WLR 1450; R v M [2011] EWHC 2132 (Fam); H v S [2011] EWHC B23 (Fam).

108 Re C (Adoption: Religious Observance) [2002] 1 FLR 1119; Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam); Re A (Local Authority: Religious Upbringing) [2010] EWHC 2503 (Fam); Re N (A Child) (Religion: Jehovah's Witness) [2011] EWHC 3737 (Fam).

109 Re L (Medical Treatment: Gillick Competence) [1998] 2 FLR 810; NHS Trust v A (A Child) [2008] 1 FLR 70.

110 Khan v Royal Air Force Summary Appeal Court [2004] HRLR 40; R (Boughton) v HM Treasury [2006] EWCA Civ 504; R v Lyons (Michael Peter) [2012] 1 Cr App R 20.

111 R v Taylor (Paul Simon) [2002] 1 Cr App R 37; R v Andrews (Reuben Phillip) [2004] EWCA Crim 947.

112 Blake v Associated Newspapers [2003] EWHC 1960 (QB); R (Green) v City of Westminster Magistrates Court [2007] EWHC 2785 (Admin); Maharaj v Eastern Media Group [2010] EWHC 1294 (QB); Shergill v Purewall [2010] EWHC 3610 (QB).

113 Hammond v DPP [2004] EWHC 69 (Admin).

114 (1881–2) LR 9 QBD 308.

115 Ibid, at 314.

116 From the older cases, see Wise v Dunning [1902] 1 KB 167; Duncan v Jones [1936] 1 KB 218.

117 [2000] HRLR 249.

118 R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105.

119 [2006] 2 AC 28.

120 R (E) v Governing Body of JFS [2009] UKSC 1.

121 This is not strictly true. The problem was noticeably fudged by the Employment Appeal Tribunal in Board of Governors of St Matthias Church of England School v Crizzle [1993] ICR 401; and the potential problem with exceptionless direct discrimination provisions post-Mandla was noted, inter alia, in Rivers, J, ‘Religious liberty as a collective right’ in O'Dair, R and Lewis, A (eds), Law and Religion (Oxford, 2001), p 235 n 39. JFS was the case in which a long-standing legal land-mine exploded. If the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548 had resisted the pressure to extend race equality law to fill the gap of a missing religious equality law, the problem might never have arisen.

122 R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin).

123 C McCrudden, ‘Multiculturalism, freedom of religion, equality and the British constitution: the JFS case considered’, (2011) 9 IJCL 229.

124 Universal Declaration of Human Rights 1948, Art 18 etc.

125 Bayatyan v Armenia (2012) 54 EHRR 15.

126 See, eg, Quakers Act 1695; Militia Act 1803.

127 See Braithwaite, Conscientious Objection.

128 Oaths Act 1888.

129 Military Service Act 1915, s 2(1)(d).

130 Vaccination Act 1898, s 2.

131 Elementary Education Act 1870, s 7; see now School Standards and Framework Act 1998, s 71.

132 Industrial Relations Act 1971, s 9(1)(b); Trades Union and Labour Relations Act 1974, schedule 1, para 6(5).

133 Abortion Act 1967, s 4; National Health Service (General Medical Services Contracts) Regulations 2004/291.

134 Human Fertilisation and Embryology Act 1990, s 38.

135 Road Traffic Act 1988, s 16(2); Employment Act 1989, s 11; Criminal Justice Act 1988, s 139(5)(b).

136 See, eg, Blake v DPP [1993] Crim LR 586. For a theoretical defence of dissent and disobedience, see Allan, T, Constitutional Justice: a liberal theory of the rule of law (Oxford, 2001), ch 4.

137 Drury v The Bakers' Union [1973] IRLR 171; R v Salford Area Health Authority ex parte Janaway [1989] AC 537. For a recent reiteration of this point, see Doogan v Greater Glasgow & Clyde Health Board [2012] CSOH 32.

138 R (Begum) v Denbigh High School Governors [2007] 1 AC 100 at para 54.

139 R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 at para 86. Lord Nicholls relied on an alleged parliamentary discretion to lead public opinion in the matter at para 50.

140 Islington LBC v Ladele [2010] 1 WLR 955 at paras 44–45.

141 The contrast between R (Watkins-Singh) v Aberdare Girls' High School Governors [2008] 3 FCR 203 and R (Playfoot) v Millais School Governing Body [2007] HRLR 34 is striking in this respect.

142 As well as the cases of McClintock, Ladele, McFarlane and Johns noted above, see also Hall v Bull [2012] EWCA Civ 83. Carl Stychin is similarly critical of this bifurcation of approaches to the protected characteristics of sexual orientation and religion. See Stychin, C, ‘Faith in the future: sexuality, religion and the public sphere’, (2009) 29 Oxford Journal of Legal Studies 729755.

143 Human Rights Act 1998, s 4.

144 R Williams, ‘Civil and religious law in England: a religious perspective’, (2008) 10 Ecc LJ 262–282; S Bano, ‘In pursuit of religious and legal diversity: a response to the Archbishop of Canterbury and the “sharia debate” in Britain’ (2008) 10 Ecc LJ 283–309; Lord Phillips of Worth Matravers, ‘Equality before the law’, a speech given at the East London Muslim Centre on 3 July 2008, reproduced in various places, including (2008) 161 Law and Justice 75–87.

145 Recent major statements include Hill, M, Ecclesiastical Law (third edition, Oxford, 2007) and Halsbury's Laws of England: vol 34: Ecclesiastical Law (fifth edition, London, 2011).

146 Church of England Assembly (Powers) Act 1919 as amended by the Synodical Government Measure 1969. Short of disestablishment on the Irish and Welsh models, this gave the Church of England power over any law concerning iself, subject only to parliamentary veto. The legislative process is discussed in Doe, N, The Legal Framework of the Church of England (Oxford, 1996) pp 5770.

147 The availablility of judicial review is not entirely secure. See Hill, M, ‘Judicial review of ecclesiastical courts’ in Doe, N, Hill, M and Ombres, R (eds), English Canon Law: essays in honour of Bishop Eric Kemp (Cardiff, 1998), pp 104114; R v Bishop of Stafford, ex parte Owen [2000] All ER (D) 1169.

148 Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28 at para 28. The language of ‘internal fragmentation’ implies that there is something wrong.

149 See JGE v English Province of Our Lady of Charity [2012] 2 WLR 709.

150 This is a broad cultural development indicated by a shift in interest from ‘religion’ to ‘spirituality’ and noted by Grace Davie as ‘believing without belonging’. See Davie, G, Religion in Britain since 1945: believing without belonging (Oxford, 1994).

151 ‘A claim of unlawful discrimination in the employment field has nothing to do with matters of doctrine, worship or government or with membership in the Church’: per Lord Hope in Percy, at para 132.

152 Questions of religious reputation are non-justiciable: Blake v Associated Newspapers [2003] EWHC 1960 (QB); Maharaj v Eastern Media Group [2010] EWHC 1294 (QB); Shergill v Purewall [2010] EWHC 3610 (QB).

153 See the discussion in Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2005), pp 308324.

154 See Rivers, The Law of Organized Religions, ch 4.

155 Davies v Presbyterian Church of Wales [1986] 1 WLR 323.

156 The high point was, arguably, Khan v Oxford City Mosque, unreported, 23 July 1998.

157 New Testament Church of God v Stewart [2008] ICR 282; Preston (Moore) v President of the Methodist Conference [2012] ICR 432; Singh v Bristol Sikh Temple Management Committee [2012] UKEAT 0429/11/ZT.

158 Of course, there are exceptions to religious non-discrimination requirement for religious groups, but the decisions in Percy and JFS clearly show the limited nature of these exceptions.

159 New Testament Church of God v Stewart [2008] ICR 282 per Pill LJ at para 47 and Arden LJ at paras 61–62.

160 Free Church of Scotland v Overtoun [1904] AC 515.

161 Varsani v Jesani [1999] Ch 219, [2002] 1 P&CR DG 11; White v Williams [2010] EWHC 940 (Ch).

162 Dean v Burne [2009] EWHC 1250 (Ch).

163 See Free Church of Scotland v General Assembly of the Free Church of Scotland [2005] SLT 348; Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No 3) [2011] SLT 1213.

164 One could also usefully reflect on instability as displayed in the contrasting judgments of the Court of Appeal and the House of Lords in Aston Cantlow and Wilmcote with Billesley PCC v Wallbank [2002] Ch 51; [2004] 1 AC 546 on the legal obligations of lay rectors.

165 Nathan, Lord, The Charities Act, 1960 (London, 1962) pp 2930 and 46.

166 Cabinet Office Strategy Unit, Private Action Public Benefit: a review of charities and the wider not-for-profit sector (September 2002), para 7.90.

167 Home Office, Charities and Not-for-Profits: a modern legal framework (July 2003), paras 6.44–6.50.

168 Charities (Exception from Registration) Regulations 1996, SI 1996/180, as extended by SI 2007/2655 to 1 October 2012. The exceptions are subject to a cap of £100,000 gross annual income: Charities Act 2011, s 30(2).

169 See Elementary Education Act 1870, s 7(2), which required religious instruction and worship to be given at the start or end of the day to facilitate withdrawal. Under s 7(2), religious instruction was immune from inspection.

170 See, now, Charities Act 2011, s 4.

171 See Charity Commission, Public Benefit and the Advancement of Religion: draft supplementary guidance for consultation (February 2008); Charity Commission, The Advancement of Religion for the Public Benefit: supplementary guidance (December 2008).

172 Charity Commission, Public Benefit, p. 31; Charity Commission, The Advancement of Religion, s E3.

173 Charity Commission, Public Benefit, p 19.

174 Neville Estates v Madden [1962] Ch 832. The Charity Commission's overly statist view of public benefit has come under sustained challenge in other areas as well.

175 Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263; Catholic Care (Diocese of Leeds) v Charity Commission [2010] EWHC 520 (Ch).

176 Taylor, C, A Secular Age (Cambridge, MA, 2007).

177 Casanova, J, Public Religions in the Modern World (Chicago, 1994).

178 See Rivers, The Law of Organized Religions, pp 268–272.

179 Berman, Law and Revolution; O'Donovan, The Desire of the Nations.

180 Taylor, A Secular Age, p 3.

181 Overview of the debate, and generally critical stance, in Chaplin, J, ‘Law, religion and public reason’ (2012) 1 Oxford Journal of Law and Religion (forthcoming), currently available at http://ojlr.oxfordjournals.org/content/early/2012/01/10/ojlr.rwr026.full.pdf+html, accessed 14 June 2012. Chaplin defines ‘religious reasoning’ as ‘public reasoning about law that is religious in content, explicitly derived from religious belief, or substantively informed by religious belief even if such belief is not actually referred to’ (p 3).

182 Andras Sajó has recently argued for very strong constraints on religious reasoning in public: Sajó, A, ‘Preliminaries to a concept of constitutional secularism’, (2009) 6 International Journal of Constitutional Law 605629. See also the response by Zucca, Lorenzo, ‘The crisis of the secular state: a reply to Professor Sajó’, (2009) 7 International Journal of Constitutional Law 494514.

183 Chaplin, ‘Law, religion and public reason’, p 20.

184 McFarlane at paras 23–24.

185 Parkinson, P, ‘Accommodating religious belief in a secular age: the issue of conscientious objection in the workplace’, (2011) 34 University of New South Wales Law Journal 281299, is similarly critical of the way in which the judgments in Ladele and McFarlane problematically render religion invisible.

186 McFarlane at para 25.

187 The classic exposition of this approach is Figgis, J, Churches in the Modern State (second edition, London, 1914). For a modern defence, see Bader, V, Secularism or Democracy? Associational Governance of Religious Diversity (Amsterdam, 2007).

188 Lucy Vickers' preference for proportionality-based solutions over immunity-based solutions is thus vulnerable to the confident conception of secular reason characteristic of the new secularism. See L Vickers, ‘Twin approaches to secularism: organized religion and society’, (2012) 32 OJLS 197–210.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
  • URL: /core/journals/ecclesiastical-law-journal
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