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Laws and Religion: Unravelling McFarlane v Relate Avon Limited

Published online by Cambridge University Press:  20 August 2010

Russell Sandberg
Russell Sandberg
Affiliation:
Lecturer, Cardiff Law School Research Associate, Centre for Law and Religion, Cardiff University
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Extract

The Labour Government (1997–2010) created a large number of new laws affecting religion. The Blair and Brown years saw the incorporation of Article 9 of the European Convention on Human Rights into domestic law, the creation of religiously-aggravated offences, the recognition of civil partnerships, and a tide of legislation affecting education, charities and equality law, which saw the extension of the law to cover discrimination on grounds of religion or belief. And all this legislation has resulted in an abundance of case law. There is more ‘religion law’ – national and international law affecting religion – than ever before. And, for some time, there has been an implicit tension in English law between this new religion law and older laws protecting religion. These old laws, many still on the statute books, were based upon a different premise. They often sought to protect Christianity in general (or the Church of England in particular) as the norm, while providing some degree of toleration for other faiths. Moreover, the legal regulation of religion was characterised by a lightness of touch. The new religion law, by contrast, is facilitative, seeking to protect religious freedom mainly as an individual right which needs to be balanced against other rights. No special protection is afforded to any one religion and protection is often afforded to non-religious beliefs. The new legal framework affords utmost importance to the concept of religious neutrality as the State takes on the role of facilitating the religious market place. The tension between the old laws on religion and the new ‘religion law’ can be seen, for example, in the abolition of the offence of blasphemy (which favoured the Church of England in particular) and its replacement by offences concerning religious hatred (which covers all religions). This tension has recently come to the fore in the Court of Appeal ruling in the application for leave to appeal in McFarlane v Relate Avon Limited.

Type
Comment
Information
Ecclesiastical Law Journal , Volume 12 , Issue 3 , September 2010 , pp. 361 - 370
Copyright
Copyright © Ecclesiastical Law Society 2010

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References

2 See the Law and Religion Scholars Network Case Database at: <http://www.law.cf.ac.uk/clr/networks/lrsncd.html>, accessed 23 July 2010.

3 For further elucidation of the concept of ‘religion law’ see Sandberg, R, ‘Church-State Relations in Europe: From Legal Models to an Interdisciplinary Approach’ (2008) 1(3) Journal of Religion in Europe 329, 336-340CrossRefGoogle Scholar. The concept will be developed in R Sandberg, Law and Religion (Cambridge, 2011) forthcoming.

4 See Hill, M and Sandberg, R, ‘Is Nothing Sacred? Clashing Symbols in a Secular World’ [2007] Public Law 488–506Google Scholar.

5 Often, however, individual religious rights are only protected where the beliefs are shared by a group: see Eweida v British Airways [2010] EWCA Civ 80.

6 See, eg the judgment of the Grand Chamber in Refah Partisi v Turkey (2003) 37 EHRR 1 at para 91.

7 See Hill, M and Sandberg, R, ‘Blasphemy and Human Rights: An English Experience in a European Context’ IV (2009) Derecho y Religión [Law and Religion] 145–160Google Scholar.

8 McFarlane v Relate Avon Limited; Application for Leave to Appeal, case number A2/2009/2733.

9 [2009] UKEAT 0106/09/3011 (30 November 2009).

10 Ladele v London Borough of Islington [2008] UKEAT 0453/08/RN (10 December 2008); [2009] EWCA (Civ) 1357. For a fuller discussion of this decision, see Lucy Vickers' article in this issue of the Journal, ‘Religious Discrimination in the Workplace: An Emerging Hierarchy?’ (2010) 12 Ecc LJ 280–303.

11 Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, reg 3(1)(a).

12 Laws LJ noted that, ‘The applicant is a Christian who (in the words of the EAT, paragraph 4) “believes that it follows from Biblical teaching that same sex sexual activity is sinful and that he should do nothing which endorses such activity”’: McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) at para 4.

13 Para 27.

14 [2009] EWCA (Civ) 1357.

15 Para 52.

16 Para 50.

17 Para 51.

18 See further R Sandberg, ‘The Implications of the Court of Appeal Decision in Ladele’, paper presented to the Interfaith Legal Advisers Network (Lambeth Palace, 1 March 2010), available as part of the Working Paper Series coordinated by the Centre for Law for Law and Religion at Cardiff University. See: <http://www.law.cf.ac.uk/clr/research/WorkingPapers.html>, accessed 23 July 2010.

19 Para 14. McFarlane was not an Article 9 claim. However, under section 3 of the Human Rights Act 1998, domestic courts are required to construe domestic laws compatibly with Convention rights. As the EAT confirmed in Eweida v British Airways UKEAT/0123/08LA (20 November 2008), this means that ‘the same (or at least no less favourable) approach must be adopted to the concept of religion and belief in the 2003 Regulations’ as is protected under Article 9: see para 27.

20 Para 17.

21 Para 16.

22 R v Secretary of State for Education and Employment, ex parte Williamson [2005] UKHL 15, discussed by S Langlaude, ‘Flogging Children with Religion: A Comment on the House of Lords' Decision in Williamson’ (2006) 8 Ecc LJ 339–345.

23 Copsey v WBB Devon Clays Ltd [2005] EWCA Civ 932, discussed by G Watson, ‘Sunday Working and Human Rights’ (2006) 8 Ecc LJ 333–334.

24 Para 15.

25 R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.

26 See para 24.

27 This recognises that a person's Article 9 rights may be influenced by the particular situation of the individual claiming that freedom. This principle is not of universal application: it only applies where someone has voluntarily submitted themselves to a system of norms, usually by means of a contract. This voluntary submission creates a ‘specific situation’ which limits the claimant's right to manifest. Whilst Strasbourg has tended to use this rule only in prescribed circumstances, the domestic judiciary seem to apply it generally. See also James Dingemans' comments on the ‘doctrine of non-interference’ at pp 371–378 below.

28 See further, Hill, M and Sandberg, R, ‘Is Nothing Sacred? Clashing Symbols in a Secular World’ [2007] Public Law 488–506Google Scholar; Sandberg, R, ‘The Changing Position of Religious Minorities in English Law: The Legacy of Begum’ in Grillo, R et al. (ed), Legal Practice and Cultural Diversity (Aldershot, 2009) 267–282Google Scholar.

29 [2009] EWCA (Civ) 1357 at para 55.

30 This is especially true in relation to Ladele where it is questionable whether the ‘specific situation rule’ ought to apply. Ladele had not voluntarily agreed to a contract of employment that included civil partnerships. When Ladele applied for her job, there was no such thing. In Copsey v WBB Devon Clays Ltd [2005] EWCA Civ 932, Rix LJ argued that the specific situation rule did not apply where an employer rather than the employees ought to vary the employee's working hours: see particularly paras 65–67.

31 Para 18.

32 Para 19.

33 Harte, D, ‘Structures of Religious Pluralism in English Law’ in Doe, N and Sandberg, R (eds), Law and Religion: New Horizons (Leuven, 2010) 159–190Google Scholar.

34 Ibid 164–165. He proposes the use of the term ‘discernment’ as an alternative.

35 Emphasis added.

36 See Bradney, A, ‘Some Sceptical Thoughts about the Academic Analysis of Law and Religion in the United Kingdom’ in Doe, N and Sandberg, R (eds), Law and Religion: New Horizons (Leuven, 2010) 299–314Google Scholar.

37 Para 21.

38 Ibid.

39 Para 23.

40 Para 24.

41 Ibid.

42 This has been most clearly elucidated in the context of charity law. See the quotation from Gilmour v Coats [1949] AC 426, HL, at n 44 below. In Neville Estates v Madden [1962] Ch 852 it was declared that declared that ‘any religion is at least likely to be better than none’.

43 As Patten J held in Varsani v Jesani [2002] 1 P&CR DG 11, ‘the court has no choice but to assume an agnostic role’ (para 11).

44 A preferable approach was expressed in Gilmour v Coats [1949] AC 426 concerning charity law: ‘The law of England has always shown favour to gifts for religious purposes. It does not now in this matter prefer one religion to another. It assumes that it is good for man to have and to practise a religion but where a particular belief is accepted by one religion and rejected by another the law can neither accept nor reject it. The law must accept the position that it is right that different religions should each be supported irrespective of whether or not all its beliefs are true’ (at 458–459).

45 See generally Helmholz, RH, The Oxford History of the Laws of England: Volume 1, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004)CrossRefGoogle Scholar and Outhwaite, RB, The Rise and Fall of the Ecclesiastical Courts, 1500–1860 (Cambridge, 2006)Google Scholar.

46 For example the Matrimonial Causes Act 1857, s 22, provides that the proceedings and actions of the courts of the State should be ‘conformable to the Principles and Rules on which the Ecclesiastical Courts have heretofore acted and given Relief’; the School Standards and Framework Act 1998 requires a daily act of worship in schools which is wholly or mainly of a broadly Christian character' (s 70, sch 20).

47 See Darby v Sweden (1991) 13 EHRR 774 As Ahdar and Leigh point out, legal preference for a certain religion is not antithetical to religious freedom ‘at least in its contemporary, milder form: the two can coexist as a matter of principle provided that legal preference is not accompanied by distinct civil and legal disabilities for the non-adherents of the official religion’: Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2005) 129–30CrossRefGoogle Scholar.

48 Para 22.

49 Ibid.

50 R v Secretary of State for Education and Employment, ex parte Williamson [2005] UKHL 15 at para 33.

51 Sandberg, R, ‘Controversial Recent Claims to Religious Liberty’ (2008) 124 Law Quarterly Review 213Google Scholar.

52 See, for instance, R (on the Application of Playfoot (A Child)) v Millais School Governing Body [2007] EWHC Admin 1698.

53 [2005] UKHL 15 at para 23.

54 This example was raised by the then Attorney General in debates concerning what was to become the Equality Act 2006: see the discussion in Grainger PLC v Nicholson [2009] UKEAT 0219/09/ZT (3 November 2009) at para 28.

55 [2005] UKHL 15 at para 24.

56 See Sandberg, R and Doe, N, ‘Religious Exemptions in Discrimination Law’ (2007) 66(2) Cambridge Law Journal 302–312CrossRefGoogle Scholar. The impact of recent case law and the Equality Act 2010 in this area will be discussed in R Sandberg, ‘The Right to Discriminate’ (2011) 13 Ecc LJ (forthcoming).

57 [2005] UKHL 15 at para 22.

58 See Hill, M, ‘Judges should not be handpicked’, Church Times, 23 April 2010Google Scholar.

59 See Williams, R, ‘Civil and Religious Law in England – A Religious Perspective’ (2008) 10 Ecc LJ 262Google Scholar.