Tuesday, 13 March 2012

Religion and the law (again)

"All that can be contended in favour of this Bill is, that the present is the age of liberal principles, and that this Bill suits the liberal principles of the age.... Whilst I fully admit the respectability and propriety of conduct of a large portion of the Jewish nation, I cannot, as a member of a Christian assembly, advise the Christian King of a Christian country to pass such a Bill. The noble and learned Lord has said, that the Christianity which is the law of the land, is merely the Christianity of the Church of England. I differ from the noble Lord, and think that the law of England derives its code of morality from the Christian dispensation generally, and regard that dispensation generally as part of that law."

So spoke the Duke of Wellington in the House of Lords on 1 August 1833, when Parliament was debating granting civil rights to Jewish people.  Things have moved on somewhat since then, and, as I have discussed in another post, it is now generally accepted by the courts that modern British law is secular in character, except in some residual respects (the special position of the Church of England being the most obvious).

In fact, official secularity represents a binding international obligation on the United Kingdom.  In the case of Leyla ┼×ahin v Turkey 44774/98 (one of a string of cases arising out of the Turkish republic's official policy of secularism), the European Court of Human Rights (ECHR) referred to "the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs", and stated that "the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed".  In Manoussakis v Greece [1996] ECHR 41, the court likewise held that freedom of religion "excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate".

Britain is not Turkey, but this country has certainly not been immune to the tensions inherent in the transition from a Christian to a post-Christian society.  And these tensions have, in part, been played out in courts of law.  Following my post on the Bideford case concerning the legality of prayers at council meetings, it may be worth rounding up some of the other litigation that has come before the courts in recent years touching on the legal status of religious belief and practice.

The cases in question have been brought by individuals and groups espousing Christian beliefs (there is a separate line of cases involving Muslim, Jewish and other litigants).  The litigation has been overwhelmingly unsuccessful, and it has produced several noteworthy dicta from senior judges on the secularity of the law.

The following list of cases is not intended to be exhaustive.
  • R v Secretary of State ex p Williamson [2005] 2 AC 246.  An attempt to legitimise corporal punishment in schools on the basis of biblical teachings.  The claim reached the House of Lords but failed at all stages.
  • Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932.  An employee refused to work on Sundays except in emergencies.  His case failed in the Employment Tribunal (ET), the Employment Appeal Tribunal (EAT) and the Court of Appeal.
  • R (Playfoot) v Millais School Governing Body [2007] EWHC 1698 (Admin).  A schoolgirl claimed that she had the right to wear a ring symbolising chastity at school.  The claim was dismissed.
  • An Application for Judicial Review by the Christian Institute [2007] NIQB 66.  This was an application for judicial review of the Northern Ireland government's adoption of gay rights legislation, namely the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.  The application failed.
  • Ladele v London Borough of Islington [2009] EWCA Civ 1357.  A registrar refused to officiate at civil partnerships.  The ET held that she had been directly and indirectly discriminated against, and also harassed.  The EAT reversed this decision, and the Court of Appeal backed the EAT.  The case is now headed for the ECHR.
  • Chaplin v Royal Devon & Exeter NHS Foundation Trust ET/1702886/09.  A nurse claimed the right to wear a crucifix at work.  Her claim failed in the ET, and she is now pursuing a claim in the ECHR.
  • Eweida v British Airways [2010] EWCA Civ 80.  An airline employee claimed the right to wear a cross with her work uniform.  She lost her case in the ET, the EAT and the Court of Appeal.  The Supreme Court declined to hear the case, and this claimant too is currently pursuing litigation in the ECHR.
  • McFarlane v Relate Avon Ltd [2010] IRLR 872.  A relationship guidance counsellor refused to work with gay couples.  His case failed in the Employment Tribunal (ET), the Employment Appeal Tribunal (EAT) and the Court of Appeal.  It too is now before the ECHR.
  • R (Johns) v Derby City Council [2011] EWHC 375.  A couple who objected to homosexuality on religious grounds challenged a local authority's approach to their application to serve as foster carers.  Their application was dismissed.
  • Bull v Hall [2012] EWCA Civ 83.  This is the case of the B&B owners who refused to rent a double room to gay and other unmarried couples.  The owners lost at first instance and in the Court of Appeal.
  • R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin).  The High Court ruled that local authorities were not empowered to include prayers as an item of official business at council meetings.
The same names seem to keep coming up again and again among the lawyers involved with these cases.  The barristers have included James Dingemans QC (Christian Institute, LadeleBull, Bideford), Paul Diamond (Eweida, Playfoot, Williamson, Copsey, McFarlane, Johns) and Sarah Crowther (Ladele, Bull).  The solicitors have included Aughton Ainsworth (Bull, Bideford, Eweida) and Ormerods (Ladele, Eweida).  Pressure groups associated with the cases have included the Christian Legal Centre and the Christian Institute.  The Christian Institute, incidentally, has the notable distinction of having been the only claimant ever to bring an action under the old Section 28 (the action failed).