This is the first in what is intended as a series of comments on current developments in the law concerning freedom of religion that will appear regularly in this Journal. This first survey deals with religious liberty challenges brought in the UK courts in 2007 and 2008. A subsequent survey will examine similar developments in international human rights law and especially before the European Court of Human Rights.

The right to freedom of religion, enshrined in the European Convention on Human Rights has been frequently tested, both in UK courts and in the European Court of Human Rights, where successive decisions over a number of years led to the establishment of several well-known principles. However, in recent years religious extremism has brought into focus a tension between the right of freedom of religious expression and the well-being of individuals (not least children) and society. The Strasbourg court requires neutrality on the part of the state and its courts. However, unlike the European Court of Human Rights, the domestic courts have had to face situations where religious observance can be seen to be causing serious harm and where interference in religious freedom and family life has been shown to be justified.

Norman Doe's book Christian Law compares and contrasts the internal regulations of churches and seeks to identify principles common to churches across the denominational spectrum. This response to Doe's work reviews the religious questions that have come before the House of Lords and Supreme Court since 2004 and seeks to identify the principles governing the secular courts' approach to religious questions. The relationship between those principles and the principles outlined in Christian Law is far from clear. While an understanding of the rules of particular religious bodies is sometimes necessary for secular judges deciding civil rights in a religious context, in most cases the courts are not concerned with the conformity of religious beliefs with religious laws, but simply with protecting the freedom to hold and manifest those beliefs.

Amongst the subjects discussed by the theologians of ARCIC, canon law has been conspicuously absent. The ecclesiology of koinonia, which is central to the work of ARCIC, has been of the greatest importance in ‘re-imagining’ the Church and so promoting ecumenism. It has faced received canon law with new questions: to what extent can canon law facilitate those structures and practices which undergird the ecumenical initiatives promoted by koinonia ecclesiology? Already, canon law provides for shared institutions and chaplaincies to institutions. Test areas for future ecumenical convergence include the reception of a member of one tradition by the other, ethics and suitability for ministry. The proposed Anglican covenant presents a challenge to the canon law of member churches within the Anglican Communion and may present a model for future ecumenical convergence. The work of canon lawyers in developing this and other new models for ecumenism is indispensable to a deeper and more extensive koinonia amongst the churches.

In an article in this journal published in 1998 entitled ‘Digging Up Exhumation’, Rupert Bursell, Chancellor of the Dioceses of Durham and St Albans, surveyed the then existing case law on exhumation and identified divergencies of approach between the cases. He concluded: ‘A definitive decision from the Court of Arches and Provincial Court may, therefore, seem to be called for […]’. Shortly afterwards the Chancery Court of York had occasion to consider the matter in Re Christ Church, Alsager. This article considers that case as well as two cases subsequent to it where the impact of Article 9 of the European Convention on Human Rights has fallen to be considered.

In the July 1995 number of the Ecclesiastical Law Journal, Mr R. H. Bloor presented an interesting account of recent difficulties encountered by the parish church of St Mary's Belton with regard to the chiming of its church clock. In his article, ‘Clocks, Bells and Cockerels’, he took occasion to consider briefly the law relating to bells as a noise nuisance and usefully brought some unreported cases to the attention of readers of the Journal. He did not however consider one question which is, it is submitted, of peculiar importance to ecclesiastical lawyers, a question raised by the present author in a letter to The Times on 22 October 1994, namely whether the obligation of clerics to ring a bell under ecclesiastical and canon law can be a defence to a complaint of nuisance for the noise caused. Nor did he examine the differences which exist, particularly with regard to defences, depending upon whether the complaint is one of public, private or statutory nuisance. The present paper is therefore offered as a discussion of these points and as a wider review of the authorities relating to them.

In Act Three of Shakespeare's King Richard III the Duke of Buckingham asks Cardinal Bourchier to try and persuade Elizabeth Woodville to release the young Duke of York from sanctuary at Westminster. In the event of such tactics failing, Buckingham wishes Lord Hastings to accompany the Cardinal to Westminster and ‘… from her jealous arms pluck him perforce.’ The Cardinal's initial reaction is one of horror:

‘…if she be obdurate

To mild enteraties god in heaven forbid

We should infringe the holy privilge

Of blessed sanctuary not for all this land

Would I be guilty of so deep a sin.’

The Church of England has committed itself to achieving net-zero carbon emissions by 2030. An important element required for success in this aim will be to amend the legislation around the management of church buildings and in particular the operation of the faculty jurisdiction. While aspects of the present system can and do facilitate some necessary change, to achieve the swift and widespread changes required within the timescale envisaged a more radical overhaul is required because the present faculty system favours the status quo, however bad that is from a carbon emissions perspective.

As a general principle, regular marriage in the Church of England is solemnized after the publication of banns. This requirement entered the medival canon law first as a matter of local custom, but was made universal in 1215 by a decree of the Fourth Lateran Council. Lord Hardwicke's Act did not impose the requirement of banns for the first time; it simply ensured that the option of an irregular marriage without banns, previously recognised by Church and State thoughfrowned upon, would no longer be valid in law.

Recently, the Supreme Court of Canada (SCC) returned to the test of individual sincerity for determining whether there has been an infringement of freedom of religion pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms (the Charter) in SL c Commission scolaire des Chênes. Sincerity of belief or in practice as necessary for religious expression on the part of a complainant has been accepted from some of the earliest Charter cases as the triggering requirement for a section 2(a) claim, and, in itself, sufficient to establish a claim which a court must then balance against conflicting claims pursuant to section 1 (‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’) or section 15 (equality rights). In SL, the court confirmed that mere sincerity is no longer sufficient and that an objective burden of proof now rests on a claimant to show how a state-sanctioned requirement infringes the fundamental right to freedom of religion before competing claims will be assessed. In SL, the court found that the complainants had failed to show how a religious education course mandated for all students without exception by the Government of Quebec interfered with what they argued was their religious freedom as Roman Catholic parents to pass on their faith to their children. This result has also been interpreted to mean that the state has a right prior to parental rights in the religious formation of their own children, and, on this reading, has been highly controversial. The court's new formulation of a sincerity test may be of interest elsewhere. The earlier formulation in Syndicat Northcrest v Anselem was adopted by the House of Lords in R (Williamson) v Secretary of State for Education and Employment, and the subsequent spread of its use has since been subject to consideration in England.

Reconciling conflict between religious freedoms and non-religious human rights is a subject that has begun to affect many countries as they have become more liberal, multicultural and secular. The law relevant to the subject is currently developing at a fast pace, and is of particular interest in England and Wales given the historical position that Christianity has had within the establishment – the monarchy, Parliament and the law. This article charts the development of the law in these areas from an era of officially Protestant uniformity to the current plural and tolerant society. The fast pace of development, particularly since the end of the Second World War, is shown through examination of the development of the law in the fields of racial discrimination, discrimination on the grounds of sexuality, and religious freedom and discrimination. To all intents and purposes, the law has now become neutral towards religion and belief and provides an enlarged space where, subject only to legitimate interference for the protection of that freedom and the rule of law, all are free to adhere to their own faith and belief system.

The faculty jurisdiction of the Church of England is the core of what remains as a distinctive system of Church Law in England. It serves inter alia to safeguard the national heritage of parish churches and it is the reason why ecclesiastical buildings in use generally are immune from listed building control under secular planning law. The faculty jurisdiction still provides a model for regulating the conservation of buildings of historic and aesthetic interest and their contents which can be compared favourably with listed building control.

In the increasingly complex conjunction of law and religion, one of the most crucial questions concerns the privileged place of religion among other convictional positions which are protected under Article 9 of the European Convention on Human Rights. This article argues the need for a trans-disciplinary approach to the question of definitions, importing insights from philosophy, sociology of law and neo-pragmatism. The aim is to elucidate the view that defining is both an art (in the discursive construction of its object) and a form of politics (as a regulative technology, through which the actual flux and complexity of human reality is brought under control). The question of what religion is (the ontological question) should be acknowledged as a jurisprudential red herring.

This journal has published two distinguished series on the lives and careers of individual jurists in the history of English church law, from the mediaeval period to the late nineteenth century: one by Professor Sir John Baker on ‘famous English canonists’ (1988–1997); and the other by Professor Richard Helmholz on ‘notable ecclesiastical lawyers’ (2013–2017). Most prepared for their professional careers with the study of civil law at Oxford or Cambridge (and before the Reformation also of canon law). Many practised as judges, advocates and proctors in the church courts (until statute ended much of their jurisdiction in the 1850s). Some wrote treatises on church law. A small number were also priests, but less so as the centuries unfolded. While these professional canonists and civilians may have had a monopoly in practising church law, they did not have a monopoly in thinking or writing about it. The clergy, who never trained or practised as lawyers, also had things to say about church law. But the clerical profession has been somewhat neglected by scholarship as a class contributing to the history of church law and jurisprudence. From diocesan bishops through parish priests to clerical scholars in the universities, their books, pamphlets, sermons, letters and other materials often deal with the nature, sources and subjects of church law. Their aims vary: from the educational through the historical or theological to the practical and polemical. These priest-jurists – fathers-in-law, they might quip – contributed much to the intellectual development of church law. One is Robert Owen, a Welsh scholar cleric whose books include Institutes of Canon Law (1884). No scholar has to date unveiled Owen as a notable Anglican priest-jurist – strangely, he has been lost to scholarship as among those whom he himself chided as ‘eminent Canonists’ who ‘hide themselves’ and remain ‘veiled Prophets’.