Are the courts doing enough to protect religious freedom? [updated]

14 June 2010 by

No entry?

A number of recent cases have ignited an interesting debate on the place of religion in the UK court system, and whether the courts are doing enough to ensure religious freedom as they are obligated to do under Article 9 of the European Convention on Human Rights.

The most notorious example has been McFarlane v Relate Avon Ltd, an unfair dismissal claim brought by a relationship counselor who as a result of his Christian beliefs refused to promote gay sex. The former Archbishop of Canterbury submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the Court of Appeal rejected his arguments outright.

We also posted last week on the Hardeep Singh case, in which Mr Justice Eady in the High Court effectively threw out a libel action because it rested upon fundamental principles of legal doctrine which could not properly be examined by a secular court. We posted:

It is unsurprising, therefore, that more questions are being asked as to whether our judges are properly qualified to understand and rule on such controversial areas, even to the extent of looking more closely at their religious beliefs; something which is common in relation to the United States Supreme Court but until now has been unusual in the UK. As Aidan O’Neill QC put it in a recent blog post, “There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue. The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.”

Jonathan Chaplin, Director of the Kirby Laing Institute for Christian Ethics at Cambridge University, has added his voice to the debate on a UK Supreme Court Blog post. He examines the propositions he says go to the heart of Lord Justice Laws’ judgment, which are (to paraphrase):

  1. The state cannot itself determine the truth or falsity of any religious belief
  2. The state cannot officially justify a law solely on the ground that it is founded on a particular religious belief held only by some citizens
  3. The state can only justify a law on the grounds that it can be seen ‘rationally and objectively to advance the general good
  4. Religious belief is, for everyone except the holder, merely subjective opinion, ‘incommunicable by any kind of proof or evidence’, the truth of which ‘lies only in the heart of the believer’.

Dr Chaplin sees the fourth proposition as the most problematic:

… to start with, this is factually incorrect, at least with regard to Christianity. There are many non-Christians, and not only believers in other religions, who would recognise that at least some of the claims of Christianity – historical ones no doubt, or, perhaps, claims about universal moral values – are capable of successful communication to and indeed assessment by others … By relying on a highly contestable – albeit widely, if unreflectively, subscribed to – epistemology, itself the product of the very kind of secularist ‘belief system’ he claims has no place in the justification of law, Lord Justice Laws has, I fear, obscured rather than illuminated the proper relationship between religion and law. In the process he has also thrown the question of the proper foundation for the protection of religious freedom in English law into even greater confusion than it was before.

Proper protection of religious freedom?

The is a debate which will continue apace, and rightly so. The courts may sometimes find it convenient to exclude arguments over religious doctrine, and Mr Justice Eady is right that judges must be very reluctant indeed to make decisions on issues which are in essence disputes between believers over the competing claims of each others’ beliefs.

But as Dr Chaplin argues, the ambit of “religion” and for that matter “doctrine” is wide and often fuzzy at the edges. As such, judges will inevitably have to get stuck in over points of religious principle, probably in matters (such as the Jewish Free School case) where thousands could be affected by their judgment. In such cases, the misuse of a blanket refusal to address issues of religious doctrine may be vulnerable to a human rights challenge.

This challenge may come in one of two ways. Either the courts’ unease over religion will lead to a breach of non-religious rights; for example, in the JFS case, the right to education; or because religious believers are being denied access to the courts which are, after all, under an obligation to protect their rights of “freedom of thought, conscience and religion”. How the courts are to satisfy this obligation must be decided on a case by case basis. A blanket restriction on courts deciding between religious principles is understandable, but it must be exercised flexibly.

Read more:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: