Baroness Hale. Ecclesiastical Law Journal. Volume 17, Issue 2. May 2015.
We have a great deal of secular law about religion in this country. The Human Rights Act 1998 protects both freedom of belief and freedom to manifest those beliefs, in worship, teaching, practice and observance. The Equality Act 2010 protects people from being discriminated against by the suppliers of employment, education, accommodation, goods and services (including public services) on account of their religion or belief (or lack of it). We have laws which punish stirring up religious hatred and which punish certain other offences more severely if they are aggravated by religious hostility. These are all laws which protect the religious beliefs of individuals, but we also have a great deal of secular law governing the conduct of organised religion, including the advantages of charitable status and the special position of places of religious worship in marriage law. Finally, there is, of course, the special legal position of the Church of England, as the established Church in England (though not in Wales, Scotland or Northern Ireland).
This means that questions about religion frequently come before secular courts and tribunals. Some of these are factual questions: tribunals dealing with employment have to decide whether an employer should have made adjustments to accommodate the religious beliefs and practices of an employee; tribunals dealing with asylum have to decide whether an asylum-seeker has a well-founded fear of being persecuted in his or her home country because of his or her religious beliefs; county courts have to decide whether a landlord wants to evict a tenant because of his or her religion; criminal courts have to decide whether an offence such as assault or criminal damage is ‘religiously aggravated’ because of the offender’s hostility on grounds of religion; any court may have to decide whether a public authority has unjustifiably interfered with a person’s freedom to manifest his or her religion.
It is also surprising how many points of law of sufficient general public importance to come before the highest court in the United Kingdom have been thrown up by these laws since I became a ‘Law Lord’ in 2004. The House of Lords had to decide whether banning corporal punishment in all schools was an unjustifiable interference with the right of parents and teachers in Christian schools to manifest their belief that to spare the rod is to spoil the child. The House also had to decide whether school uniform rules banning a teenage Muslim girl from wearing the jilbab were an unjustified interference with her right to manifest her religion. The Supreme Court had to decide whether the definition of a Jewish child in the admissions criteria for a Jewish school discriminated on ethnic, as opposed to religious, grounds. The House of Lords had to decide whether an associate minister in the Church of Scotland was protected against sex discrimination. The Supreme Court had to decide whether a Methodist minister was protected by employment law. The Court had to decide whether Christian hotel-keepers were justified in discriminating against a same-sex couple because of their religious beliefs. The Court has recently had to decide on the precise scope of the right of conscientious objection to taking part in an abortion. The House of Lords had to decide whether a Mormon temple qualified for rate relief as a ‘place of public religious worship’. And the Supreme Court had to decide whether a Church of Scientology chapel could be licensed to celebrate marriages as a ‘place of meeting for religious worship’. Perhaps most interesting of all for present purposes, the Supreme Court has recently ruled that it is open to the secular courts to decide who is the true ‘successor’ to the spiritual leader of a Sikh sect, and thus has power to appoint and dismiss the trustees of the charitable trust which owns three Sikh gurdwaras in Birmingham, even though this might depend upon disputed matters of doctrine.
These are just the cases which have come before the House of Lords or the Supreme Court since 2004. Many other points of law have come before other courts and tribunals, most notably the series of cases dealing with the adjustments which employers may, or may not, have to make to avoid discriminating against their employees on grounds of religion or unjustifiably preventing their employees from manifesting their religion, which culminated in the decision of the European Court of Human Rights in Eweida and others v United Kingdom.
Many of these cases turn upon the precise wording of statutory provisions or other legal instruments. Nevertheless, it is possible to deduce from them some general principles governing the secular courts’ approach to religious issues.
First, in R (Hodkin) v Registrar of Births, Deaths and Marriages, the Scientology case, the Supreme Court adopted Lord Toulson’s working definition of religion:
I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with that belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science … Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science.
Such a definition is necessary when it comes to interpreting statutory phrases such as ‘religious worship’. It is not strictly necessary when it comes to anti-discrimination and religious freedom laws, because they protect both religion and belief (and the lack of either). Nevertheless, if your belief system qualifies as a religion, then it qualifies for protection, whereas non-religious belief systems may have to show that they have reached such a level of seriousness and coherence as to merit the law’s protection. Nor will it be so obvious what is a ‘manifestation’ of such a belief.
Secondly, that protection is given to all believers, no matter what their religion or belief. No special protection is given to belief in Christianity, still less to belief in the 39 Articles of the Church of England, over other religions. The offence of blasphemy, which did protect them, was abolished in 2008. As the European Court of Human Rights has often said (most recently in its defence of the French ban on wearing face coverings in public):
Freedom of thought, conscience and religion is one of the foundations of a democratic society … This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
This pluralism is a challenge, especially for those of us who do have some religious faith, because, by definition, if we believe in one faith we do not believe in any other. Not only that, other faiths may not be prepared to offer us the same toleration that we are obliged to offer them. We may have to respect all faiths equally even if not all faiths are equally respectable.
Thirdly, as the role of the state is to be a ‘neutral and impartial organiser of the exercise of various religions, faiths and beliefs’, its ‘duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the way those beliefs are expressed’. Thus, in R (Williamson) v Secretary of State for Education and Employment, the case about corporal punishment in schools, it was not for us to challenge the authenticity of the parents’ and teachers’ belief that such punishment was mandated by the Bible (although the judge at first instance had done just that). We had to take the belief at face value and ask whether the state was justified in prohibiting the schools from acting upon it. In the same way, in R (S) v Governors of Denbigh High School, the school uniform case, most of us did not challenge the validity of the schoolgirl’s belief in what was entailed in the Prophet’s injunction to dress modestly (although one of our number, who has two Muslim children, did do so).
Fourthly, however, there are occasions when the secular courts cannot avoid ruling upon questions of religious doctrine. In Khaira v Shergill, the Sikh Gurdwara case, the Court of Appeal had struck out the whole dispute on the basis that, as it depended upon questions of Sikh doctrine, it was non-justiciable in the secular courts. The Supreme Court pointed out that, where private rights are involved, such as property rights or contractual claims, the courts cannot avoid deciding upon doctrinal issues if this is necessary in order to determine the civil claim. This principle was established in the nineteenth century, principally in Scottish cases where, ‘because of the tendency of the [Scottish] church towards schism at that time’, the courts had to decide who were the true believers to whom the church property belonged.
Fifthly, religious freedom is not an absolute right. There is an absolute right to believe whatever one chooses to believe. But the freedom to express those beliefs, which is protected by Article 10 of the European Convention on Human Rights, ‘may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society’ for a number of legitimate purposes, including the prevention of disorder or crime, the protection of health or morals and the protection of the reputation and rights of others (Article 10(2)). And the freedom to manifest those beliefs, which is protected by Article 9, can be subject to ‘such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’ (Article 9(2)).
Like so much else in the Convention, this reflects the position which had long been taken in English law. A person is not free to manifest his or her religious beliefs in a way that does harm to other people. In R v Senior, a father was convicted of the manslaughter of his baby by the illegal act of neglecting the child, contrary to the Prevention of Cruelty to Children Act 1894. He had refused to provide the child with medical aid or medicine, although he knew that the child was seriously ill, because he belonged to a sect called the ‘Peculiar People’, which believed that to do so showed insufficient faith in God and the power of prayer.
Nowadays, we do not have to rely on the deterrent power of the criminal law to save the lives and protect the health of such children. There is power to interfere in the family in order to protect the child, either by taking the child away altogether or, more probably, by authorising the doctors to provide the treatment to which the parents object. There is, for example, a standard procedure for authorising, but only as a last resort, the giving of blood products to the children of Jehovah’s Witnesses.
A more difficult question is whether a person has the right to manifest his or her religious beliefs by doing or risking harm to himself or herself. Where the person is a child, the English courts have held that they do have the power to intervene to protect his or her life and even his or her health, by authorising the imposition of treatment to which the child himself or herself objects on religious grounds. The welfare of the child is their paramount consideration, even if he or she is otherwise of an age and maturity to make his or her own decisions about medical care. On the other hand, where the person is an adult who has the mental capacity to make the decision for himself or herself, he or she has the right to refuse treatment on religious grounds and the courts do not have the power to intervene. Presumably similar thinking motivated the government long ago to agree that turban-wearing Sikhs could be exempted from the general rule requiring riders of motor cycles and scooters to wear crash helmets.
Sixthly, therefore, religious belief provides no exemption from having to obey general laws which are designed for the common good. Perhaps the most prominent recent example of this proposition is Bull v Hall, the case of the Christian hotel-keepers. They would only let their double-bedded rooms to ‘hetero-sexual married couples’ (although they would let their twin-bedded and single rooms to anyone), so they turned away a same-sex couple who had booked a room not knowing of this policy. They claimed that this was not discrimination on grounds of sexual orientation because they also turned away unmarried opposite-sex couples. This raised two problems: at the time, to apply a marriage criterion was indirectly discriminatory because same-sex couples could not get married; but, in any event, this couple were in a civil partnership, which is the equivalent of marriage, and it was quite clear that the hotel would turn away any same-sex couple, whether or not they were in a marriage or civil partnership. We held that they were not entitled to offer their services in a way which contravened the law against discrimination. It was not an unjustified interference with their right to manifest their religion for the law to refuse to make an exception to those laws to cater for their beliefs. Parliament had made a deliberate decision not to do so (and it does not take much imagination to understand the problems which granting religiously based exemptions from anti-discrimination laws might create).
Seventhly, putting the boot on the other foot, employers and other providers are not allowed to discriminate against employees or customers on the grounds of their religious beliefs. If the gay couple had been running a hotel they would not have been allowed to turn away Christians (or, indeed, opposite-sex couples). Direct discrimination – treating someone less favourably than others just because of his or her religion – is always prohibited (unless there is a specifically tailored exemption, as there is for employment for the purposes of organised religion. Indirect discrimination – applying a general ‘provision, criterion or practice’ which puts people of a particular religion at a disadvantage – is prohibited unless it is a proportionate means of achieving a legitimate aim. So ‘no Christians allowed’ would always be prohibited; but ‘everyone must work on Sundays’ would be permitted if there were some legitimate reason for such a rule other than avoiding employing Christians.
This means that employers and other providers may be expected to make reasonable adjustments to their rules and practices to accommodate the religious beliefs of their employees. This is well illustrated by the four cases which were decided by the European Court of Human Rights in Eweida v United Kingdom. Ms Eweida, a British Airways check-in desk worker, was prohibited from wearing a discreet cross at work, whereas Muslim workers were allowed to wear the hijab. Ms Chaplin, an NHS nurse, was also prohibited from wearing a cross at work, whereas a particular type of hijab was allowed. Both of them lost their discrimination cases before employment tribunals in this country. The tribunals held that this was not even indirect discrimination, because Christians as a group were not put at a particular disadvantage by not being able to wear a cross, as this was not a matter of religious obligation but personal choice. Even if it were discrimination, the tribunals held that the requirements were justified, either by the corporate uniform policy or on health and safety grounds.
The Strasbourg court was much more sympathetic than the employment tribunals had been. It held that wearing a cross was indeed a manifestation of their religion, even though it was not a mandatory requirement for them to do so. It also held that the rule was an interference with their right to manifest their religion. It was no answer to say that they could get a different job where the uniform requirements were not so strict. The ease of changing jobs was just an element in deciding whether the interference was justified. British Airways had not been justified in prohibiting the cross (and indeed they had abandoned the rule soon afterwards). On the other hand, the hospital had been justified in doing so for health and safety reasons (the tightly fitting sports hijabs did not pose the sort of health risk posed by dangling jewellery).
At the same time, the Strasbourg court decided the cases of Ms Ladele, a registrar of births, deaths and marriages who would not take any part in registering civil partnerships, and Mr McFarlane, a Relate counsellor who would not provide psycho-sexual counselling to same-sex couples. Their deeply held conviction that same-sex relationships were wrong conflicted with their employers’ obligations to offer their services without discriminating on the ground of sexual orientation. Again, both of them lost their discrimination cases in this country. Both of them also lost their cases before the European Court of Human Rights. But Ms Ladele might not have lost her job if she had been prepared to accept the compromise offered by her employer, which would have let her off having to conduct civil partnership ceremonies, while requiring her to take part in the administrative arrangements. Mr McFarlane accepted that it was not practicable for his employer to screen clients in advance. So they were cases where a reasonable accommodation had either been offered or was just not possible.
These cases all show that questions of justification for indirect discrimination have now to be looked at in the light of the Convention right to manifest one’s religion without unjustified interference. Our law will become deeply incoherent if the analysis does not reach the same result in each case. Thus the Court of Appeal has recently held that an employer must make reasonable adjustments to cater for an employee’s sincerely held Sabbatarian beliefs, even though this is not a core component of the Christian faith (although, as it happened, it was not reasonable practicable to avoid rostering her altogether on a Sunday).
Finally, the law does on occasion make express provision for conscientious objection; even if this does not apply to the particular case, there may still be room to expect the employer to make reasonable adjustments. This is well illustrated by Doogan v Greater Glasgow and Clyde Health Board, the case of the Roman Catholic midwives who objected to taking any part at all in arranging, supervising and caring for patients undergoing a medical termination of pregnancy. The Supreme Court held that the right of conscientious objection in section 4 of the Abortion Act 1967 did not extend to administrative, managerial and supervisory tasks, as opposed to ‘hands-on’ patient care during the termination. But it was a separate question whether the employers could reasonably be expected to make adjustments to their working practices to accommodate these midwives’ beliefs. That question has yet to be decided by an employment tribunal, but all agree that at that stage the midwives’ right to manifest their religion will come into play.
Responding to Christian Law
This is unlikely to be a comprehensive account of the general principles governing the approach of the secular courts in this country to questions of religion. But the attempt was prompted by reading Norman Doe’s work on Christian Law. Professor Doe has sought to distil, from the various rule books or regulatory instruments governing 100 churches, spread across 10 of the 22 different Christian traditions represented in the World Council of Churches, a set of principles which are common to them all. While I have been dealing with the law of the land, he has been dealing with the laws of the different Christian churches or ecclesial groups which inhabit the world. Because no branch of Christianity has a single document which governs everyone and everything everywhere (although the Roman Catholic Church comes closest), this is a monumental labour in which many primary and secondary sources have been studied. From these he concludes that, despite their doctrinal differences, there is a remarkable degree of similarity in what the churches’ rule books cover and the norms of conduct which they expect of their members and institutions. Hence he is able to deduce a set of common principles of what might be called ‘Christian law’. His principal purpose is avowedly ecumenical, to challenge the assumptions of difference which have stood in the way of greater co-operation between the Christian churches. His work can help the churches better to understand how much they have in common; if it can also encourage them to understand that this could be more important than the doctrinal and confessional differences which divide them, then a great deal will have been achieved.
More controversial, from my point of view, are his claims that ‘an understanding of religious laws, such as those of Christians, is useful to identify and evaluate the acceptable scope of State law on religion’ (p 7) and that ‘the study may assist lawyers in the practice of human rights law and discrimination law, for example, when they need to explain the juridical approaches of Christians in these contexts’ (p 8).
Taking the second first, it is indeed of interest to learn that there is a principle common to all the churches studied:
that all humans are created in the image of God and as such share a basic equality of dignity and fundamental rights; the State should recognise, respect and protect these basic human rights; the church should promote and defend human rights in society, and, like the church, the State and society should not discriminate against individuals on grounds of, for example, race, gender and religion; the State should also recognise, promote and protect the religious freedom of churches corporately and of all the faithful individually, as well as freedom of conscience. (p 368)
Article 1 of the Universal Declaration of Human Rights of 1948, which is the foundation of most if not all modern international human rights instruments, declares that ‘All men are born free and equal in dignity and rights’. It may well be that this has its roots in Christian principles, although from where I sit it is quite hard to see equality as a fundamental principle common to all Christian churches until relatively recently, nor (as Bull v Hall shows) has it yet been fully achieved. It does seem clear from Professor Doe’s quotations from the rule books that the Universal Declaration has had an impact upon those Christian principles, which now expressly declare acceptance of the fundamental values of freedom, dignity and equality.
However, that understanding, contestable as it is, is not going to help me or any other judge to decide a single case about discrimination or religious freedom. It would not have helped in deciding Bull v Hall to know that the Christian churches are committed to equality and human rights, when Mr and Mrs Bull, for perfectly understandable biblical reasons, were conscientiously opposed to same-sex relationships. What we as judges need to know and understand is what the individuals before us actually believe and whether that belief is freely and sincerely held. We are not concerned with whether it is doctrinally right or wrong, or what, if anything, the church’s rule book has to say about it. We are no longer concerned with whether it is a ‘core belief’ of the religion to which the individual belongs. Christians should be pleased about that, because one of the problems they have faced is that Christianity, and especially the branch of it by law established in this country, has so few core beliefs and required practices. We are only concerned with whether the individual should be free to manifest the beliefs that he or she has and whether other people should be required to allow him or her to do so.
On the other hand, an understanding of the different churches’ rule books may be essential in deciding the civil rights of their members. In Percy v Board of National Mission of the Church of Scotland, we had to pay close attention to the Church’s rules, as well as to the documentary exchanges between the parties, in deciding whether there was a ‘contract personally to perform services’ to which sex discrimination law applied. In Moore v President of the Methodist Conference, we had to pay close attention to the whole rule book of the Methodist Church in England, in order to decide whether there was a contract of employment. But that has to be done at the level of the individual case, not of general principles deduced from many different rule books.
Nor do I think that an understanding of the principles of Christian law will help to identify the ‘acceptable scope of State law on religion’. This book has certainly helped me to understand what the churches studied think about the relationship between church and state:
the State is instituted by God; its function is to promote and protect the temporal and common good of society; the functions of the State are fundamentally different from those of the church; there should be a basic separation between church and State; church and State should co-operate in matters of common concern; the faithful may participate in politics to the extent permitted by their church law; the church should comply with State law; but disobedience by the faithful to unjust laws is permitted; and the faithful should not resort to State courts unless all ecclesiastical process is exhausted. (p 356)
I find this reassuring, because I think that it means that the churches do not make any claim to dictate the content of secular laws. Lord Justice Laws drew a vital distinction between the freedom to hold religious views and to practise one’s faith and the power of any religious group to dictate what the laws should be, when refusing Mr MacFarlane (the Relate counsellor) permission to appeal to the Court of Appeal:
In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right and every other person’s right to hold and express his or her beliefs, and so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. … [T]he conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since, in the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may, of course, be true, but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society.
This means that the question of whether the law should provide for a right of conscientious objection, of the sort being claimed by Mr McFarlane, is a matter for secular judgment. Parliament had decided not to provide for such a right as a matter of law, although the employers could have done so as a matter of contract. But they had not. As we have seen, the European Court of Human Rights declined to say that they had struck the wrong balance between the right to religious freedom and the rights of others. The right of conscientious objection claimed by Christian law, as I understand it, is a right in church law to decline to obey an unjust secular law, accepting that there may be consequences in secular law of abiding by that religious right.
Reading this fascinating book has, of course, taught me a great deal about the organisational similarities and differences between the various Christian churches (although some of the most interestingly different, such as the Quakers and the Pentecostal churches, have not been studied): not surprisingly, the Anglican Church sits in the middle, combining an episcopal organisation and legal structure with broadly Protestant beliefs and attitudes. The book has also taught me a great deal about the separation between church law and secular law. But what it has not taught me is much about the relationship between the two. There is obviously still a great deal of work for Professor Doe and his disciples to do.