It would appear that cases in the House of Lords concerning religious liberty are like London buses. We go for ages without any, then two arrive at once: and, looking at some of the reasoning of the most recent arrivals, they seem to resemble more closely the ‘bendy bus’ so beloved of Ken Livingstone than the familiar and traditionally rigid ‘routemaster’.

Each of the decisions receives coverage in this issue, both in the Case Notes and in the Comment section, but I should like to venture a further reflection on certain slightly surprising elements of the two decisions. Russell Sandberg points to several concerns in relation to Gallagher v Church of Jesus Christ of Latter-day Saints,Footnote ¹ and it is perhaps unfortunate that their Lordships did not consider with any degree of rigour the interplay between Articles 9 and 14 of the European Convention on Human Rights. The prohibition of discrimination in the enjoyment of convention rights is not subject to the qualifications that serve to narrow the compass of primary rights. The House of Lords did not address head on the simple point that certain religious gatherings for collective worship have the benefit of an exemption from rating liability while others do not. That is discrimination plain and simple and it is not enough to read over the concept of public benefit from charity law into rating legislation on the subject of public religious worship.

As to R (Baiai) v Secretary of State for the Home Department,Footnote ² the position is even more strange. The Secretary of State conceded before the Court of Appeal that a scheme requiring illegal immigrants to secure ministerial consent to marry could not legitimately allow an exemption for Anglican marriages.Footnote ³ The point was therefore no longer in play when the matter came before the House of Lords. But this did not prevent Baroness Hale of Richmond making the following teasingly coquettish comment:

Why did Baroness Hale express herself so tentatively? Why did she only say that the Church of England ‘believes itself’ required to marry parishioners? Assuming the legal requirements are satisfied, it is generally understood that there is a legal right to be married in one's parish church.Footnote ⁵ The right is the mirror image of the minister's duty to solemnise matrimony. This derives from the Clandestine Marriages Act 1753 (Lord Hardwicke's Marriage Act);Footnote ⁶ and the existence and scope of the duty has been discussed in the pages of this Journal.Footnote ⁷ Contrary to the impression given by Baroness Hale, this is not the exercise of self-belief on the part of an ecclesial community (albeit the established church of the nation) but it is part of the law of the land. If the duty to marry were only a perceived obligation on the part of the Church of England, why would Parliament consistently (and most recently in 2007) make provision for a ‘conscience’ clause, relieving parochial clergy of their duty in certain specified circumstances?Footnote ⁸

These two decisions provide useful material for discussion by academics and scholars, but they represent missed opportunities. The first is a failure to grapple with Article 14 when read together with Article 9 and to consider appropriate redress for the pervasive nature of discrimination in society and its laws.Footnote ⁹ Their Lordships' ultimate conclusion may well be right but their reasoning was ill-informed and uncompelling. The second demonstrates that, even at its most senior level, the judiciary should be wary of going off-piste. For indeed, not only is the requirement of parochial clergy to marry parishioners a matter of English domestic law (as opposed to Anglican self-belief), it is also a duty that, since 1 October 2008, has been substantially extended by the enlargement of the categories of persons who have the right to demand that the duty be exercised, by dint of their ‘qualifying connection’ with the parish church.Footnote ¹⁰ A less opportune moment for such a random and unnecessary obiter dictum is hard to imagine.