Introduction

On the afternoon of Wednesday 6th December 2023, Paul Scriven, a Liberal Democrat peer, introduced his private member’s bill, the Disestablishment of the Church of England Bill, in the House of Lords, after it had been selected by ballot.

In the UK Parliament, the first reading of a bill is usually a mere formality, with the meat of the debate being reserved for the second reading – which may happen a few months later, if there is time and circumstances do not intervene.

When Lord Scriven, however, ‘beg[ged] to introduce a bill to disestablish the Church of England, to make provision for the protection of freedom of religion or belief, and for connected purposes,’ there were noises of dissent halfway through – apparently from the Conservative government’s side.

And when the Lord Speaker, Lord McFall of Alcluith, asked the House whether they were ‘content’ to let the bill be read a first time, there was vociferous opposition, to the point where he initially responded that the ‘not contents’ had it, before changing his mind. The full drama can be seen (and heard) in the video clip linked in Lord Scriven’s tweet below.

A brief history of (dis)establishment

The origin of the establishment of the Church of England was Henry VIII’s Act of Supremacy in 1534. This made him the ‘Supreme Head of the Church of England’ and required that his subjects swear an oath of loyalty recognising his marriage to his second wife, Anne Boleyn, after he had unilaterally decided to cancel his marriage to his first wife, Catherine of Aragon.

The Act of Supremacy was repealed under Henry VIII’s Catholic daughter when she became Mary I, but then re-enacted in 1558 under Elizabeth I. Section VIII, entitled ‘All Spiritual Jurisdiction united to the Crown,’ is still in force today.

The last time a bill was introduced into Parliament that would have disestablished the Church was in 1991, in Tony Benn’s Commonwealth of Britain Bill, which would also have abolished the House of Lords altogether and removed the constitutional role of the monarchy. However, the bill’s second reading was repeatedly deferred and there was never a full debate.

In January 2020, another Liberal Democrat peer, Dick Taverne, introduced a private member’s bill on one aspect of disestablishment: the House of Lords (Removal of Bishops) Bill. This passed its first reading, but fell by the wayside during the pandemic.

Other points in recent history at which disestablishment or the removal of the bishops from the Lords was considered are recorded in a paper on ‘The relationship between church and state in the United Kingdom’, published by the House of Commons Library in September.

The 2018 debate

Disestablishment was briefly debated in the House of Lords on 28 November 2018, under Elizabeth II. A Labour peer, Lord Berkeley, asked the Conservative government ‘what assessment they have made of the case for the disestablishment of the Church of England.’ The laconic answer, from Lord Young of Cookham, was, ‘My Lords, none.’

Lord Berkeley pointed out that attendance at the Church of England was falling rapidly, and that ‘half of British people have no religion’. He therefore proposed that it would be time for Charles, when he became king, ‘to embrace this secular state’ and swear an appropriately non-religious oath. This led to a discussion about the status of the Church of England and constitutional reform.

For anyone who thinks that the bishops in the Lords are a mere relic, their entrenched place in the establishment can be illustrated by a few quotations from this debate. Lord Young argued that the bishops in the Lords ‘add a spiritual dimension to our discussions. They speak with a moral authority that escapes most of us…The bishops seek to heal religious conflict and promote religious tolerance and inclusiveness.’ In a word, the government’s policy was ‘antidisestablishmentarianism’. Without a trace of self-interest, the Lord Bishop of Worcester proposed that ‘the established Church is a significant force for good.’

Lord Scriven’s Bill

About 24 hours before the Disestablishment Bill was introduced, I interviewed Paul Scriven over a cup of tea in the House of Lords. An edited version of the interview is below. We discuss his motivations for bringing the bill, even though it is almost certainly doomed to fail, and why he is bringing it now, of all times. We also look at the relationship of the Church to the monarchy and of disestablishment to wider constitutional reform; and whether the bishops or other religious leaders really have any claim to moral authority.

~ Emma Park, Editor

Interview

Freethinker: How did you come to introduce this bill?

Paul Scriven: A little bit by accident. I entered the Lords reluctantly, as I do not agree with an unelected second house. In 2014, Nick Clegg wanted to put a number of peers in, like me, who believed that when the time came, we would vote for a reformed elected chamber. I am quite a nonconformist by background. I grew up on a council estate in Huddersfield and have always rallied against authority. When I have seen unfairness, I have fought it. Then Nick finally beat me down and got me into this place. Now that I am here, I realise it is a place where you can champion causes which are important to improve either individual lives or the state of the nation or internationally.

I was an agnostic when I came in. I have sat and watched the Bishops’ Bench for the last nearly ten years, and their views on social matters have made me a confirmed atheist. It is quite clear they are way behind the curve on where the vast majority of Britons are, whether on same-sex marriage or women or a number of issues. If that is Christianity in action from the Church of England perspective, then I do not want anything to do with it. They do not represent modern Britain – that was clear from the 2021 census.

Has being gay influenced your perspective on this issue?

I find some churches’ views on being gay baffling. Others are clearly more progressive. It is hurtful at times having to hear that you are not equal, even though they say that God loves you – and then it is quite clear that they do not like my kind of love. That is wretched. It has not driven me to my position. I just think that, on a wider number of issues, listening to the bishops has made me not want to be associated with what I see as predominantly white old men arguing about how to keep an institution together and very conservative in their views.

I also find it absolutely bewildering that in the UK Parliament, there is only one institution that is guaranteed places, and that is the 26 Anglican bishops who sit in the House of Lords. In 2023, how on earth does a Church which has 0.9% of the population [in England] in regular attendance at a Sunday service have an automatic right to be in Parliament, determine laws and have influence and power beyond its relevance to most people?

More broadly, why is it that the Church of England has so much influence, power and a special status in our society, when those who want to practise any faith or belief should have equality? The time now is ripe for disestablishment – especially when you consider what a diverse country we are, in terms not just of our faith, but of our cultures and beliefs. It seems ridiculous that one religious denomination should have a special status that goes back to a king wanting a divorce in the 1500s.

In terms of tactics, the next general election has to take place no later than January 2025. Did you ever consider leaving the bill until the next government?

Very few private member’s bills actually become law. In all honesty, I think it is more likely that snow will fall in hell than that my bill will get through this time. It is important, though, to raise the issue, because of the diversity of beliefs and faiths revealed by the 2021 census. I could stay quiet and hope for the next government to have a different view, which I think highly unlikely. It will have a large legislative programme and probably the disestablishment of the Church of England will not be among its priorities.

If the bill falls, I can file it again at the start of the next Parliament. I am looking at this in the longer term. During the debate in the second reading, I will be able to listen to people’s objections and amend the bill, which will hopefully strengthen it next time round.

Is the bill officially supported by the Liberal Democrats?

No, as a private member’s bill it is not. It is not an issue which I discussed with my party first. I am sure that as the debate happens and as the bill progresses, there will be cross-party support from all over the House. My guess is that there will also be opposition from people of different parties too.

How did the drafting process work?

I had been in touch with the National Secular Society (NSS) over a number of issues, and I just said to them, I think now is the time to introduce the private member’s bill for disestablishment. We had a discussion and they told me what was important to them. I also had discussions with Humanists UK (HUK). There were a number of issues which both organisations wanted in the bill. To actually draft the bill in appropriate parliamentary language, I worked with the House of Lords Private Bill Office.

Apart from the NSS and HUK, did you work with any other organisations on the bill?

Those were the two organisations that reached out and spoke to me. I have had quite a lot of emails from people in the Church of England supporting disestablishment. They have told me that, for them, there is a real feeling that disestablishment could be liberating. They would no longer be seen as an organ of the state, and would be able to start doing things based on their true mission, which were not either weakened or diluted by their Church’s established status.

Have you asked the bishops for their point of view?

I talked to the Bishop of Sheffield briefly about it. They will probably disagree. And when we get to the second reading, they will have arguments as to why they want to keep their privileged status and their seats in Parliament. However, they do not come from a position of neutrality. It will be interesting to see if they all have the same view.

Is your argument for disestablishment premised on the state of the Church of England now, or is it a matter of principle, or both?

It is a matter of principle. No faith or belief should have a special status. People should be able to pursue their belief or religion equally.

One possibility sometimes mooted by supporters of religion is that, instead of simply having 26 bishops, the major religions and Christian denominations in the UK could all have allocated seats. What would you say to this?

Religions do not have a monopoly on morals, they do not have a monopoly on insight. You only have to look at some of the child abuse scandals in the Church of England and how they were covered up to realise that. If an individual within a church or a belief system has such significant impact that they can help influence the House of Lords in its present form, then they should by all means be individually nominated. But it should not be the very fact that they are an office-holder or attached to a particular religion.

One common view about the bishops in the Lords is that, well, they are quite nice, and are probably overall a good rather than a bad influence on legislation. How would you respond to that?

They are an influence. It is not for me to determine whether they are good or bad. They have a vested interest to ensure that they can use this place to ingrain their privileged position. On a number of occasions, I have been on the same side of the argument as the bishops, such as in the Illegal Migration Bill. But the fact that they are bishops does not mean that they should automatically be here and able to make those points.

Is there an analogy between bishops and hereditary peers, in terms of their lack of democratic legitimacy?

Being a hereditary peer depends on which womb you came out of. But even the hereditary peers in the Lords are now elected before they get here, unlike the bishops, who are plonked in because of the church they are in.

The peers are chosen by the world’s smallest electorate…

Yes. But the bishops come because they decided to study a certain theological doctrine and then they have climbed the greasy pole within a particular church. It is very odd to me.

What about the technicalities of disestablishment? I have heard some Anglicans saying that they support disestablishment in theory, but in practice it would simply be too difficult to disentangle all the knots that bind Church and State.

Isn’t that interesting? What they are really doing is arguing that they have got their fingers and their claws in so many parts of our constitution that it would be too difficult to touch it. On that argument, quite a lot of legislation would never get done.

My bill is not specific about the technicalities. It asks that, within six months of its being passed, a committee is set up for a year to look at the legal implications of what needs to happen to disestablish the Church of England. The committee would be made up of relevant legal practitioners and people who are specialists in the constitution and in law to do with the Church of England. A report then goes to the Secretary of State, and within six months of receiving that report, the Secretary of State has to produce a detailed legal bill on disestablishment. I am not saying this is going to be easy. There are going to be some very difficult conundrums in there, for example over the Act of Union.

Difficulty should not be a reason for not legislating, but for doing it carefully, with good legal minds and an appropriate timescale.

In terms of the implications of disestablishment, the Church of England owns a lot of property. What do you say should happen to it?

I do not want to get into a big argument about this. My bill says that property will go to the Church’s General Synod. And the sovereign will no longer have the title ‘Defender of the Faith’.

Talking of the monarchy, is getting rid of it a logical next step after disestablishment?

No, that does not automatically follow. There are many functioning constitutional monarchies in Europe where the monarch is not head of the church. So one does not follow from the other. Personally, I am not a republican. I believe in a European-style constitutional monarchy.

What sort of a coronation would you envisage post-disestablishment?

A non-religious one, which would crown the monarch as the constitutional monarch of the country, not as the head of a particular faith. It could be quite interesting to develop a new coronation.

Presumably the monarch would no longer be obliged to be Anglican?

Yes. This is not rocket science. Religion would come out of the coronation, and the monarch would no longer be the ultimate boss of the Church of England.

What about other religions with a presence in Parliament? As things stand, do they have much influence behind the scenes?

Not as much as the established church. There are people of faith – Christian, Muslim, Sikh – or of no faith, like the Humanists, who try to exert influence on legislation. But the difference is that it is equal and they have to win the argument. They have not got an ingrained position. I would not want to stop that. One of the purposes of my bill is to defend people’s right to have faith and non-belief, and to be able to pursue that equally.

One of the arguments that will get thrown about is that I am anti-religious. What I actually want to do is level the playing field between the influence of all faiths and beliefs.

Taking a step back, how far are we from full-scale House of Lords reform?

It is going to be a long journey. At the age of 48, I came here naïvely thinking I would be a turkey voting for Christmas. I am now 57, and I have worked out since being here that the evolution of the British system is not always as fast as you want it to be. To reform the House of Lords would take a lot of effort and heartache. I do not think Labour will do it in their first term, but if they get in for a second term, then there may be some significant reform. My guess is that it will be in steps rather than a big leap, which is the way that the British have tended to go for their revolutions for many centuries now. The removal of the hereditary peers and the bishops might be one of the first possible reforms in terms of moving to a democratically elected chamber eventually. Other reforms might include lowering the size of the House, fixing a retirement age for peers, and changing the way that peers are selected.

As you say, disestablishment may not be high on a Labour government’s list of reforms. Indeed, why should it be high on anyone’s agenda, when we have so many other problems in the UK to deal with?

Things that affect people’s lives every day, such as the health service, the economy, housing, safety, are always going to be there. I am not suggesting for one moment that the disestablishment of the Church of England should take priority over the health service, for instance. What my bill intends to do is to raise awareness so that when the time is right and government space becomes available, there will be public understanding and the pressure to deliver disestablishment. Eventually, the public will say, ‘Now is the time for change.’

And when will ‘eventually’ be?

I cannot give you an answer. We are getting the ball rolling; maybe it will happen in my lifetime, maybe it won’t. But we shall keep pushing for it. And hopefully it will become such a public discussion that, one day, the government will make time for it.

The post ‘This is not rocket science’: the Disestablishment of the Church of England Bill 2023 appeared first on The Freethinker.

As the Israeli bombardment of Hamas hideouts in Gaza continues, killing thousands of Palestinians, protests against Israel have erupted worldwide. The demonstrations in the Muslim world have been typically volatile, with Israeli flags and effigies burnt, and genocidal chants against Israel and Jews redoubled. Meanwhile, the hundreds of thousands protesting in support of Palestine in major Western cities have not focused their energies on ensuring respite for Palestinians, and addressing the plight of the Gazans, who are currently facing a gruesome existential crisis.

Any sort of resolution to the conflict, in my view, would only be achievable via reconciliatory movements, such as rallying for a two-state solution and demanding the release of Israeli hostages, in the same breath as calling for a ceasefire or condemning the Judaeophobia on display across the rallies. Instead, the pro-Palestine protesters appear more invested in demanding the erasure of Israel by freeing Palestine ‘from the river to the sea’.

Many gullible Western liberals have demanded that solely a Palestinian state exist between the Jordan River and the Mediterranean Sea. Strangely, they do not appear to see anything anti-Israeli, nay anti-Semitic, in this demand. Of course, these protesters vociferously accuse Israel of erasing Palestine, without blinking an eye at their own position on the elimination of the Jewish state.

More critically, as thousands are being killed in Gaza, it takes a special ideological fixation, and indifference to human suffering, to peddle self-serving inflammatory narratives, fuelled by the blood of the Palestinians whom one claims to be defending. It should not require lengthy reflection to realise that championing Israel’s destruction, especially without any practical means to carry it out, is not exactly the best way to convince that state not to inflict harm on others. But it is precisely this symbiosis between Palestinian suffering and calls for Israel’s destruction that has helped sustain both the Islamist and leftist dogma on the conflict. Instead of adducing the death of Palestinians as an argument for destroying Israel, the cause of peace and safety for both sides would be better served by building bridges.

Nowhere was this clearer than in the reactions to the 7 October massacre orchestrated by Hamas, in which over 1,000 Israelis were murdered, the highest number of Jews killed in an attack since the Holocaust. Islamists have loudly glorified Hamas’s Judaeophobic jihad – fuelled by animosity against the Jews on the basis of religion – and claimed it is consistent with Islamic scriptures. At the same time, the ideological left’s exuberant celebration of the mass murder of civilians is almost exclusively reserved for Israeli citizens and not any other country’s citizens.

Those hostile to Israel often refuse to differentiate between Israelis and Jews in general. Yet even the most raucous anti-Western voices on the left would take a courteous pause before linking attacks on Jews in the US, the UK or France to ‘colonialism’. In contrast, when gruesome massacres of Israelis were being carried out, the left’s instinctive reaction was to celebrate, as they have continued to do while hostages remain in captivity with Hamas. Even Western parliaments, such as the one in Scotland, refused to fly the Israeli flag, while the United Nations Human Rights Council (UNHCR) did not even mention Israel in its moment of silence for the ‘loss of innocent lives’.

Of course, the left’s celebratory or at least exculpatory attitude towards the killings in Israel would hardly be adopted towards the numerous states empirically more guilty of crimes similar to those attributed to Israel, from Turkey to China. Even from a Muslim-centric lens, many times more people have been killed in wars in Afghanistan, Syria, Iraq and Yemen since the turn of the century than during the entire history of the Arab-Israeli conflict. Similarly, the suffering of Afghans, Iraqis or Syrians at the hands of external forces is not generally used as an apologia for the Taliban or ISIS – at least not to the same degree as with Hamas.

Those deeming Israel an ‘artificial state’ might want to look at the arbitrary nature in which the vast majority of the postcolonial states came into being, without consideration for locals’ consensual aspirations. For instance, 80 percent of the borders in Africa were simply based on longitudes and latitudes. The Muslims of many Indian states had little in common with what is now Pakistan, the doppelganger of Israel whose creation they rallied for in the 1940s, with significantly more displacement and human suffering. Indeed, the creation of Pakistan involved the largest mass migration in human history. While Jews have always lived in the Israel-Palestine area, Muslims from Uttar Pradesh or Bengal in India had as much connection to the Balochistan or Khyber Pakhtunkhwa provinces in Pakistan as someone in Poland would have with Portugal.

Today, too, it is Mizrahi Jews of Middle Eastern origin who constitute the largest percentage of Israeli Jews, owing to the mass expulsion of Jews from Muslim-majority states. This fact is consistently ignored by Israel’s opponents in those countries. The attribution of war crimes singularly to Israel is determined by the rulebook put forth by the same global establishment that created Israeli and Palestinian states in the region. Paradoxically, the Jewish-majority country has been required by its critics to treat territories captured in war in a manner unlike that in which any other victorious power ever has done in history. 

Despite all this, one can still attempt to make sense of the ideological left’s fixation with Israel, given the historical military and economic support provided to the state by the Western powers, under the leadership of the US. This fixation has been further augmented in the present crisis by the majority of Western governments’ backing for Israel and the predominant media support for their narrative on the conflict.

The rise of Benjamin Netanyahu’s far-right government in Israel, which has exploited its own religionist rationale to bulldoze Palestinian rights, has also encouraged those on the left to condemn the stance of Western powers and criticise their role in the conflict. This condemnation is undoubtedly crucial to keeping a check on Israeli far-right manoeuvres, and to the possibility of an eventual compromise. Not only have growing Jewish settlements on the West Bank shrunk Palestinian control over the territories, but the current Israeli regime’s open support for the settlers is encouraging violence against Palestinians who have nothing to do with Hamas or anti-Israel jihad.

It is also essential, for anyone who recognises the clear role of religion in the conflict, to delegitimise any canonical justifications of exclusively Judaic claims to the land in the Old Testament, just as it is to highlight the Judaeophobia in the Quran and Hadith. Yet to condemn the settlements on the West Bank, and the Israeli government’s policies, requires by the same token the acceptance of Israel’s legitimacy as a state. A sweeping assertion of Israeli illegality is not only counterproductive, but also inconsistent with the international law usually cited to delegitimise Israeli action in the West Bank.     

However, the most ominous hypocrisy, and one that is especially damaging to any quest for Palestinian freedom, stems from the Muslim left. For one thing, they deceitfully refuse to acknowledge the Arab and Muslim imperialism at the heart of the conflict; for another, they refuse to acknowledge the Judaeophobia rooted in Islamic scripture as the driving force behind the Muslim world’s murderous obsession with Israel. The genocidal rhetoric against the Jews with which Islamic scriptures are brim-full, and which is often echoed at Palestine protest rallies even in the West, is the predominant motivation behind Muslim animosity towards Israel. In Hamas, this animosity finds its most bloodthirsty expression. The leftist postcolonial apologia of their actions provides the cover of victimhood that sustains Islamist violence.

Even so, what makes support for Hamas by self-identified ‘pro-Palestine’ sections truly bizarre is that the jihadist group is not just indirectly responsible for Gaza’s plight, nor is it merely using civilian inhabitants of Gaza as human shields. Rather, Hamas has actively killed Palestinians to maintain its stranglehold over the population. From gunning down supporters and members of political rivals Fatah to brutally massacring dissenters in Gaza, the group has thrived on Palestinian dead bodies.

Furthermore, like many other jihadist groups in the Muslim world, the rise of Hamas was facilitated by Western powers and indeed Israel itself at the tail end of the Cold War, in order to counter groups with Soviet sympathies. Thereafter, through funding from the oil-rich Arab world, Hamas leaders have enriched their bank balances, and many, like the current chairman Ismail Haniyeh, are orchestrating Israeli and Palestinian bloodshed from the comfort of Qatar. Hamas, together with its fellow jihadist outfit, Islamic Jihad, has been duly supported by Iran, where the leaders of both groups met this June to plot the ‘most efficient way to end the more than 75 years of occupation’ along with the Shia jihadist group Hezbollah in Lebanon. The plan that ensued, punctuated by the gory events of 7 October, was designed to derail the ongoing normalisation of ties between Israel and the Arab world. As recently as September, Saudi Crown Prince Mohammed Bin Salman had underlined that official diplomatic ties were ‘closer’ than ever. Tragically, the present conflict has dealt a blow to these diplomatic efforts.

In addition to the glorification of jihad against Israelis, what also binds Hamas and its leftist apologists is their condemnation of the diplomatic recognition of Israel on the part of Arab and Muslim states, a move initiated by the Abraham Accords in 2020. For over eight decades, since the 1937 Peel Commission report suggested the creation of a Jewish homeland, the violent Arab rejection of it has superseded any endeavour to form a Palestinian one. Even until the Six-Day War in 1967, the West Bank and Gaza were under Jordanian and Egyptian control; the idea that a Palestinian homeland might be created in those territories, even one that was temporary and conditional to future expansionary ambitions, was never promoted.

At the heart of the ongoing conflict in the region is the fact that different religious groups are claiming exclusive control over much of the same territory. These opposing claims are irreconcilable. However, one way to resolve the dilemma might be to allow Muslims and Jews to share collective control over certain parts of the land, most notably in Jerusalem, while holding other parts exclusively. I suspect that this will indeed be the means of resolution in the long term – though not until more blood has needlessly been spilt.

The collective Arab-Muslim acceptance of Israel has long been the sure move that would ultimately ensure Palestinian freedom. Unfortunately, it is the puritanical proponents of ‘free Palestine’, whether the jihadists or their apologists, who have rallied, politically or militarily, to practically deny any bid for that freedom by denying Israel’s right to exist. Even among the more reconciliation-minded of these ideologues, it is the rise of the Israeli right and its repudiation of the two-state solution that they view as the deal-breaker, and not the fact the Jewish state has been surrounded in the region by those propagating their own genocidal version of a single, Arab state.

In this way, the Islamist and leftist dream of Israel’s extermination, which symbolises the salvation of their respective ideologies, has long treated Palestinian lives as fodder – no matter if treaties signed by Egypt and Jordan with Israel underlined the potential of peace deals in the region. Today, both Jordan and Egypt are likelier to welcome Israelis than Palestinians, with King Abdullah II refusing to take refugees and Egypt having sealed its border with Gaza since 2007. The lack of even a whisper of condemnation of Egypt or Jordan in rallies for Palestine makes it easy to understand how such rallies can be interpreted as being targeted specifically at Israel, and at Israel alone.

Even so, despite the hysterical ideologies at the heart of the long-running Israeli-Arab conflict, and the existence of countless volumes underlining the complexities of the conflict, the solution is still set to be as arbitrarily imposed as the problem was. While the Hamas-initiated war might postpone the Saudi-led acceptance of Israel, the deal will happen soon. As has long been maintained by Mohamed bin Salman, this deal is likely to lead to the creation of an autonomous Palestine as well, especially since Riyadh wants to maintain its leadership over the Muslim world.

Unfortunately for the Palestinians, what they will eventually get is likely to be a fraction of what they could have attained decades ago through reconciliation, while a wish for such reconciliation is scarcely detectable in the rallying cries of those claiming to be the well-wishers of Palestine. Reconciliation and a two-state solution are also likely to come in the aftermath of a torpedoed Gaza and an enormous loss of Palestinian lives. Meanwhile, those on the ideological left, along with the Islamists, persist in their hate-mongering rhetoric, unwilling to acknowledge how their disdain of compromise is contributing to the bloodshed of Palestinians and Israelis alike.  

The post Bloodshed in Gaza: Islamists, leftist ideologues, and the prospects of a two-state solution appeared first on The Freethinker.

The vexed question of ‘what constitutes a religion?’ has come up from time to time in the domestic courts, most recently in R (Hodkin & Anor) v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77 about the status of Scientology. Though there is no bar on someone setting up and practising his or her own ‘religion’ and no obligation to register it with officialdom, the issue is important in practical terms because registering a trust as a charity gives it several financial advantages, while the practice of religion itself is a human right protected by Article 9 of the European Convention.

In 1999, the Charity Commission of England and Wales (the regulator that approves or rejects applications to register new charities) had refused to register the Church of Scientology as a charity on the grounds that its core practices did not constitute ‘worship’ and that even if it were otherwise established for ‘the advancement of religion’, its activities were not of sufficient public benefit – and, in consequence, the Registrar General of Births, Deaths and Marriages refused to register the Church’s chapel in London as an approved venue for solemnising religious marriages. Louisa Hodkin and her fiancé wanted to marry in the chapel and took their challenge to that refusal all the way to the Supreme Court.

In the leading judgment, Lord Toulson described ‘religion’ 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 … Such a belief system may or may not involve belief in a supreme being’.

On that basis, the Supreme Court held that the Church of Scientology satisfied the test and that its London chapel was indeed a place of meeting for religious worship within the meaning of the Places of Worship Registration Act 1855 – and ordered the Registrar General to register it. So far as I am aware, however, despite the ruling in Hodkin and a ruling in January 2023 that parts of its buildings in London were exempt from business rates because they were used in connexion with public religious worship, the Church of Scientology has still not been registered as a charity in England and Wales – though perhaps it has not bothered to reapply.

But that was by no means the end of the story. In 2016, the Charity Commission refused to register The Temple of the Jedi Order as a charitable incorporated organisation with purposes including ‘to advance the religion of Jediism, for the public benefit worldwide, in accordance with the Jedi Doctrine’. The Commission took the view that ‘religion’ in charity law was characterised by

‘belief in one or more gods or spiritual or non-secular principles or things, and a relationship between the adherents of the religion and the gods, principles or things which is expressed by worship, reverence and adoration, veneration intercession or by some other religious rite or service’ and ‘must be capable of providing moral and ethical value or edification to the public and characterised by a certain level of cogency, seriousness, cohesion and importance’

 – and it decided that Jediism failed those tests. It did suggest that there was scope for Jediism and the Jedi Doctrine to be advanced and followed as a secular belief system, but noted that, in Hodkin, Lord Toulson had excluded secular belief systems from his description of ‘religion’.

Fast forward to the 2020s, and the latest round of the ‘what is a religion’ saga has just been played out in Strasbourg, where the European Court of Human Rights has returned to the matter in two judgments: Alm v Austria [2022] ECHR Application no. 20921/21 and Sager and Others v Austria [2022] ECHR Application no. 61827/19.

The basis for the Court’s decisions in Alm and Sager was its earlier ruling in De Wilde v The Netherlands [2021] ECHR No 9476/19. Mienke De Wilde, a Pastafarian, had applied for a new driving licence and a new identity card with a picture of her wearing a colander on her head. When the domestic authorities refused her request, she took the matter to Strasbourg – where the ECtHR was equally unsympathetic, concluding that Pastafarianism was not a ‘religion’ or ‘belief’ within the meaning of Article 9 and that Article 9 could not apply to the Church of the Flying Spaghetti Monster or its followers. Therefore, said the Court, on the facts her complaint was incompatible with the provisions of the Convention.

In Alm, the applicant was refused permission to wear a ‘pasta crown’ on the photograph for his identity card and passport. The ECtHR noted that, although the concept of ‘religion or belief’ in the sense of being protected by Article 9 of the Convention (freedom of thought, conscience and religion) had to be interpreted broadly, that did not mean that all opinions or convictions were to be regarded as religious or philosophical positions. Further, the Court had previously concluded in De Wilde that Pastafarianism was not to be regarded as a ‘religion or belief’ within the meaning of Article 9. So in the present case, the Court saw no reason to hold otherwise and the complaint was therefore incompatible with the provisions of the Convention within the meaning of Article 35(3).

The Court took a similar line in Sager in relation to the complaint under Article 9. As to the additional complaint under Article 11 (freedom of association), it rejected the applicants’ claim that they had been prevented from freely associating as a confessional religious community and enjoying the benefits of that status because – unjustifiably – Austria only granted it to ‘religious’ communities and not to non-religious ideologies. The Court reiterated that Article 11 did not give associations a right to any specific legal status and that the applicants had, in fact, successfully established a (non-religious) association under Austrian law in 2015. The Court had confirmed in De Wilde that where a state had created a privileged status for religious communities, it had to apply the criteria for acceptance in a non-discriminatory manner and give religious groups a fair opportunity to apply for that status. But because Pastafarianism did not constitute a ‘religion’ within the meaning of the Court’s case‑law, Article 11 of the Convention did not apply in its case. It followed that the complaint was manifestly ill‑founded, and the Court rejected it.

Derk Venema and Niko Alm have previously criticised the approach of the ECtHR on several grounds. The criticism that chimes most insistently with me is the concept of ‘invented religions’: that a religion that has been ‘made up’ by its adherents cannot be serious or worthy of respect. Pastafarianism and Jediism are the extreme cases: the first began as a spoof in reaction to the rise of the Intelligent Design movement, while the second came to public attention in 2001 when almost 400,000 people recorded their religion as ‘Jedi’ on the UK Census. But lots of religions that are now fully accepted were ‘invented’ at some point.

The Church of Scientology began life as recently as the 1950s, while the Latter-day Saints were first organised by their prophet, Joseph Smith, in 1830: before that, they simply did not exist. The Quakers emerged in the mid-17th century and were routinely persecuted and imprisoned by the authorities, most commonly on charges of blasphemy and the non-payment of tithes. Even in the case of Christianity itself in the wider, non-denominational sense, it was not clear until the middle of the first century, when the Council of Jerusalem, as described in Acts 15, considered the matter in some detail, that it was going to be a distinct religion it itself rather than a reformist movement within Judaism. Or again: there was no Islam before Muhammad, no Buddhism before the Buddha.

So is ‘madeupness’ a valid or useful criterion for evaluating the validity of a religion or life-stance? I would suggest not: at the very least, courts – and not only the ECtHR – should reject a new or unfamiliar religion only after considerable and anxious forethought. Probably the test case is the Church of Jesus Christ of Latter-Day Saints: it was undoubtedly invented by (or, as Mormons would put it, revealed to) Joseph Smith, but surely no-one nowadays would dispute its cogency, seriousness and cohesion – whatever view they might take of the truth or otherwise of its doctrines. And in any case, as Mienke de Wilde and Paul Cliteur point out:

‘What is it called when you really, really, really believe in secularism? Can you hold these views and morals so dearly that they become sacred to you? … what if someone’s secular worldview is so firmly held that he believes he needs to adopt a fitting religion to practise, preach and teach that secular worldview in the best possible way? Should he not have the right to practise his worldview freely if – with this religion of practising secularity – he does no harm to others?’

Indeed: how could he or she not have that right?

 Whether or not Pastafarianism should be protected as a ‘religion or belief’ under Article 9 remains arguable, but I would suggest that, at the very least, domestic authorities should be very, very careful how they apply the test of ‘cogency, seriousness, cohesion and importance’. One person’s ‘cogent and serious’ belief may be another person’s fairy-tale. And at least one common law jurisdiction, New Zealand, has two officially registered Pastafarian marriage celebrants, one in Wellington and the other in Auckland.

But perhaps the last word should rest with Niko Alm himself, who suggests in his latest comment on his case that the approach of the Austrian Department of Religious Affairs to the issue has been totally irrational:

‘The simpler, cheaper and more elegant decision would have been to simply accept what is worthy and right: to allow the pasta crown in the identity card. The only person who would have made a fool of himself would have been me.’

Further reading on Pastafarianism and its challenge to established religion:

Religious Privilege 2 : 0 Pastafarians, by Niko Alm

Flying spaghetti monsters, by Emma Park (for the New Humanist)

The secular religion of the Church of the Flying Spaghetti Monster, by Paul Cliteur and Mienke de Wilde

Judging the Flying Spaghetti Monster, by Derk Venema and Niko Alm

Pastafarian Month at the Freethinker

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Freethought, open enquiry and free speech – or ‘free discourse’, as it has elegantly been called – are often concerned with the critical and dispassionate examination of controversial subjects. Arguably, there is no freethought worth the name unless these subjects can be discussed. Not to discuss them, out of fear of causing offence, is tacitly to accept the imposition of ‘blasphemy’ laws or taboos on whole areas, not just of abstract ideas, but of our lives and humanity. Granted that they should be discussed, the question is how.

In 2022, the Freethinker was concerned with developing ways of approaching difficult topics, as far as possible in a civilised, clear, intelligent and objective manner, but without fear of offending those who want to impose silence on anyone who disagrees with them. We shall continue with this approach in 2023.

Below is a selection of articles on six of last year’s themes that were most controversial, sensitive or liable to be censored: Islam, blasphemy, the trans debate, race, the pandemic, and China.

Islam

Silence of the teachers – by Nath Jnan

The ‘Women’s Revolution’ – by two activists in Iran

The radicalisation of young Muslims in the UK: an ongoing problem? – by Khadija Khan

The price of criticising Islam in northern Nigeria

Blasphemy, freedom of religion and freedom of speech

The secular religion of the Church of the Flying Spaghetti Monster – by Mienke de Wilde and Paul Cliteur

Secularism and the struggle for free speech – by Stephen Evans

Jesus and Mo on civil rights – cartoon by Mohammed Jones

Blasphemy Month at the Freethinker

The trans debate

The falsehood at the heart of the trans movement – by Eliza Mondegreen

‘A godless neo-religion’ – interview with Helen Joyce

Race

Race: the most difficult subject of all? – interview with Inaya Folarin Iman

The pandemic and civil liberties

‘The defence of liberty is a state of mind’ – interview with Jonathan Sumption, Part I

‘The light of democratic scrutiny was switched off for two years’ – interview with Adam Wagner

When science and civil liberties clash – by Helen Dale

‘To protect us all’: the UK government’s contempt for Parliament during the Covid pandemic – by David McGrogan

China

Jackboots in Manchester – by Simon Cheng

Hong Kong exodus, 2021-22 – by James Lin Shan Hon

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What is it called when you really, really, really believe in secularism?

Can you hold these views and morals so dearly that they become sacred to you? Can you believe that humour, irony, and play are the most appropriate, ‘God-given’ tools to teach your views? Can you believe in coincidental design, which is the most intelligent design, if you also believe in science and the importance of play, experiments, and a trial-and-error approach to learning and becoming?

And if you firmly believe in such a system, might you also devoutly believe in the use of metaphorical thinking to guide the manner in which you practise this belief and give concrete meaning to your thoughts? What if you believed this moral system of secularism so firmly that you would make serious sacrifices for it, engage in legal warfare, and consider it to have all the features of religion, even though it had all the features of secularism too? What if one branch of this hybrid belief system was called ‘The Church of the Flying Spaghetti Monster’? Can you have a serious secular religion, and would it deserve the same protection as every other religion, by calling it a religion? In other words: can we call a hybrid religion, ‘religion’?

Pastafarianism belongs to ‘New, Unknown, Weird and/or Small (‘NUWS’) religions, a term proposed by the Dutch scholar Derk Venema. Its founder is Bobby Henderson, a science student from Portland, Oregon. Pastafarians revere an all-powerful, invisible, flying monster made of spaghetti and meatballs. Their holy book is the Gospel of the Flying Spaghetti Monster.

Is this a religion? According to the European Court of Human Rights in Strasbourg, the answer to this question is ‘no’. That appears from their recent verdict in De Wilde vs. The Netherlands (2021).

According to the European Court, Pastafarianism is a secular creed – not serious, not religious. But what if someone’s secular worldview is so firmly held that he believes he needs to adopt a fitting religion to practise, preach and teach that secular worldview in the best possible way? Should he not have the right to practise his worldview freely if – with this religion of practising secularity – he does no harm to others? Does everybody have the same right to have a recognised faith in order to practise what they preach, or is that a privilege reserved for people who believe in something in the most literal or classical sense?

What about ‘cultural Christians’, who only use their religion as a cultural tradition to bond with family and friends on holidays, weddings, and funerals? Or what about Muslims, who often state they do not literally believe everything their holy texts are saying? Should we deny them their rights as well, or should we be glad when people do not take fundamental religious texts literally and read them in a more metaphorical way?

These are a lot of questions, but there is also is a lot to think about.

Back to the European Court of Human Rights, but now to a different case. In 1993, in the Kokkinakis case, the Court made an important ruling. The case dealt with whether a Jehovah’s Witness would not be unduly frustrated in his right to practise his religion by a Greek ban on proselytising. The Court ruled that this would be the case. But more interesting for the topic of this essay is something that the Court said about the reach of Article 9 in the European Convention of Human Rights – the article which protects the freedom of thought, conscience, and religion. Here is what the Court said in Kokkinakis:

‘As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It 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.’

In turn, Article 9 of the European Convention of Human Rights states as follows:

‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only 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.’

This combination of jurisprudence and law terminated any speculation about the extent of religious freedom under the ECHR. The statement in Art. 9 that one can change one’s religion or belief – the so-called apostasy clause (Cliteur 2021), is, as part of the freedom of religion, ‘also a precious asset for atheists, agnostics, sceptics and the unconcerned.’ Since Kokkinakis, we know that the apostasy clause is applicable to those who want to change from one religion to another religion, but also to those who want to change from a religion to non-religion, that is, to atheism, agnosticism, scepticism or simply ‘indifference’. The freedom of religion, or the freedom of thought, conscience, and religion, also protects the rejection of all faiths and thus the right to freely practise that rejection, or lack of belief, in teaching, practice, worship, and observance.

The Kokkinakis case was an enormously important step in what might be called  ‘the emancipation of fundamental unbelief’. For European citizens whose governments had joined the ECHR, it was clear from 1993 onwards that their philosophical position had found explicit protection under Article 9. In other words, their view was protected not only as an ‘opinion’ under the right to freedom of expression (art. 10 ECHR), but also under the apparently more dignified right of ‘freedom of conscience, thought, and religion’.

From 1993 onwards, the right to be an atheist in practice and preaching was clearly affirmed. Article 9 protects the interests and rights of believers who want to stay within the traditional religious mould, but also the interests and rights of those who want to break free from it.

The consequences are significant and relevant to a broad spectrum of social institutions. Take the case of education. ‘Atheists, agnostics, sceptics, and the unconcerned’ also have a conscience. They have their ‘thought’. And their conscience and their thought have the same protection under the Convention as the classical religious conscience, or classical religious thought.

What does this mean? If atheists have the same rights, they too should be able to manifest their belief in teaching, practice, worship, and observance, in any way they think is necessary. If an atheist or agnostic believes he needs to adopt a religion to be able to practise, teach and manifest his beliefs, he should not be restrained from exercising his rights. After all, ‘the freedom to manifest one’s religion or beliefs can only be subject only 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.’ Or can it?

As we have argued, the right to freely change religion counts for believers who might want to change to a different religion (for example, from Christianity to Islam), and for those who want to make changes within the central elements of their belief system, for instance by questioning the trinity within Catholicism. The consequence of this freedom is often ignored. One of the consequences, in our view, is that Article 9, especially in combination with the apostasy clause and its interpretation in Kokkinakis, can help us to develop more liberal interpretations of religious positions. In a time of increasing fundamentalism, this is no mean feat. And not only that: it can help us to ‘liberalise’ the notion of religion itself.

Unfortunately, in De Wilde vs the Netherlands, the ECtHR failed to consider the liberating effect of the apostasy clause and Kokkinakis, as far as the idea of ‘religion’ itself is concerned. Let us explain what we mean.

The Court has repeatedly emphasised that ‘religion’ must meet specific requirements to find protection under Article 9. And it has also indicated what these requirements are. However, no exhaustive definition of religion has been given by the Court. The conditions set by the Court for something to count as a ‘religion’ are therefore necessary conditions, but not sufficient conditions. What are these conditions? Let the Court speak for itself. In Eweida v. UK (2013, para 81) it states:

‘The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance.’

Thus Article 9 does not protect just any arbitrary position that the complainants see as religious, but only views characterised by:

1.        Cogency

2.        Seriousness

3.        Cohesion, and

4.        Importance.

We might call these the ‘coherence requirements’. ‘Seriousness’ proved to be a fatal stumbling block for recognising the Church of the Flying Spaghetti Monster as a ‘religion’. The CFSM uses irony and humour – and according to the legal institutions in the Low Countries and the European Court in Strasbourg, this was incompatible with ‘seriousness’. We deplore this. We also think it is a missed chance to have the combination of the apostasy clause and the Kokkinakis case further developed. The Court could have said: why should religion always be gloomy? Why exclude humour and joy from the concept of religion? Why is parody incompatible with religion? But perhaps this is something for further consideration.

What we consider a promising perspective for the future is the development of the concept of ‘secular religion’, and ultimately its legal recognition. Religions go through changes. But the idea of religion is also undergoing change. In more or less closed cultures (cultures not open to pluralism, diversity, open-mindedness), people use a concept of religion that is wholly grafted onto their own religion, the religion of their own country, or their own culture. For the ancient Greeks, for example, it must not have been easy to imagine a concept of religion that was not polytheistic. For the Jews, on the other hand, it was difficult to conceive of a religion that was not monotheistic.

Today, a judge who must interpret the concept of religion will not hesitate to include both the monotheistic and polytheistic conceptions of religion. Even atheistic religions, such as certain forms of Buddhism, find recognition in law. Is it not evident that the resistance that now manifests itself against ‘humorous religion’ will be broken one day? We think so.

The time will come when a religion that values parody, humour, light-heartedness, and merriment will also find recognition as a genuine religious option. Perhaps this could be called a ‘secular religion’. A religion that takes ‘seriously’ values which are traditionally associated with secularism and modernity. That will also be the moment when all discrimination against alternative religions, such as the Church of the Flying Spaghetti Monster, is finally abandoned.

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Reform of human rights law is coming. Although the rationale behind the proposed new Bill of Rights does not directly concern freedom of religion or belief, the proposed changes are likely to have a significant effect – particularly in relation to the legal protection of non-religious beliefs. This article explores what we know about the new Bill of Rights so far and explores how it likely to impact freedom of religion or belief by reference to the human rights case law that has developed over the last twenty years. It argues that, although elements of that case law have been problematic, the proposed reform could be far worse and risks seriously undermining rights and protections. 

The Queen’s Speech

The Human Rights Act 1998 has long being a bugbear of the Conservative Party. The Queen’s Speech 2022 finally confirmed that legislation would be introduced to reform it.  Prince Charles, deputising for the sometimes immobilised Sovereign, read the words: 

‘Her Majesty’s Government will ensure the constitution is defended. Her Majesty’s ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.’

This raised the questions of by whom the constitution is under attack; what is currently imbalanced about the relationship between the legislature and the courts; and what supposed golden age of equilibrium is going to be restored. 

The answers to these questions are not apparently clear. Yes, there have been some controversial and perhaps questionable decisions since the Human Rights Act 1998 came into force. But what is controversial and questionable is necessarily subjective. 

It is possible to point to constitutional issues that have arisen in recent years that might be grounds for asserting that the constitution needs defending. These include the compliance with the Ministerial Code, rule-breaking by the very politicians making the Covid rules, the Conservative government’s willingness to break international law in relation to Brexit negotiations, the use of executive powers during the pandemic, and the Westminster government’s increasingly dismissive and outdated attitude towards the devolved institutions. 

However, it is unlikely that these were what Her Majesty’s Government had in mind. Rather, given the rhetoric of the Prime Minister and Home Secretary, the target seems to be ‘lefty lawyers’. In her speech to the Conservative Party Conference in 2020, Home Secretary Priti Patel pledged to bring about reform of asylum law and attacked ‘those defending the broken system – the traffickers, the do-gooders, the leftie lawyers, the Labour Party.’ In his speech at the same conference, Prime Minister Boris Johnson spoke of the need to stop ‘the whole criminal justice system from being hamstrung by what the Home Secretary would doubtless and rightly call the lefty human rights lawyers and other do-gooders’.

This attitude has existed for some time. Back in the Conservative Party conference of 2011, Theresa May, then Home Secretary, notoriously blamed human rights law for being used to avoid deporting an illegal immigrant because of his pet cat. The cat story proved to be untrue, but the Conservative attack on human rights laws and on ‘lefty lawyers’ generally has increased dramatically, no doubt inspired in part by the former profession of the current Leader of the Opposition. 

Human rights laws have also come in for criticism as part of the Brexit debate. Our human rights laws do not come from the European Union, although they are recognised in EU law. Rather, they come from the Council of Europe – an institution that is separate from the EU. The European Convention on Human Rights (ECHR) is a human rights treaty created by the Council of Europe, of which the UK remains a member, and policed by the European Court of Human Rights in Strasbourg. The Human Rights Act 1998 incorporated the ECHR into English law. Prior to the 1998 Act, if you wanted to enforce your Convention rights against the UK government, you would need to go to the Strasbourg court. Since the Human Rights Act, you can now bring such claims in domestic courts against any public authority – with ultimate appeal to the European Court of Human Rights in Strasbourg. The fact that the EU and Council of Europe are separate entities has not prevented human rights law and the ECHR being conflated with Brexit.

Despite calls by some Brexit campaigners, the reform of human rights law under the Bill of Rights proposal will not involve leaving the Council of Europe or scrapping the Human Rights Act in its entirety. Rather, it will involve a number of changes to the Act. These are likely to be stealthy but significant. There is no clear evidence that such tinkering is needed. The Government simply ignored responses to a recent consultation that largely rejected the need for and types of reform proposed.

There is a real risk that reform may weaken rather than strengthen human rights. In particular, reform could have a significant impact on freedom of religion or belief. ‘Freedom of religion or belief’ is protected under Article 9 of the ECHR. This includes the right to freedom of thought, conscience and religion: everyone has the absolute right to believe whatever they want. It also includes the right to manifest religion or belief in worship, practice, teaching and observance. This second aspect of the right, the ability to act upon your beliefs, is qualified. It can be limited where doing so is justified under Article 9(2). 

The purpose and benefits of the Bill

Although the Bill has not yet been introduced into Parliament, leaving unresolved the question of what it will be called (‘the Bill of Rights Bill’?), the 10 Downing Street briefing notes on the Queen’s Speech provide a two page summary of the purpose, benefits and main elements of the Bill.

To a considerable extent, the purpose and benefits of the Bill alleged by the briefing notes are political hyperbole. The Bill of Rights will apparently ‘end the abuse of the human rights framework and restore some common sense to our justice system’. The legislation will curb ‘the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest’, and will reduce ‘unnecessary litigation’ and avoid ‘undue risk aversion for bodies delivering public services’. 

This raises the question of what, if anything, constitutes ‘unnecessary litigation’. Given the dramatic cuts to legal aid, litigation is more than ever a last resort and indeed is outside the means of the majority of the population. 

The discussion of benefits of the Bill, however, suggests that the Government has two particular issues in mind. First, ‘defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate’; and second, ‘tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.’

Yet despite the specificity of these concerns, and leaving to one side the question of whether they are justified, it seems that the approach of the Bill of Rights will be to overhaul the entire human rights framework in ways that will have dramatic and probably unintended consequences for other Convention rights such as freedom of religion or belief. This is clear in the four ‘elements of the Bill’ listed in the briefing notes.

The interpretation of the Strasbourg case law

The first main element of the Bill will be ‘establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.’

This proposal seems to be based on an erroneous understanding of the current law. The Human Rights Act 1998 already requires courts and tribunals to ‘take into account’ – though not necessarily follow – the jurisprudence of the European Court of Human Rights at Strasbourg (section 2(1)).This means that the case law of the Strasbourg Court that has developed detailed understandings and interpretations of Convention rights – such as freedom of religion or belief – is considered but not necessarily adapted by domestic courts. 

The Strasbourg case law is not particularly constraining – at least not in relation to freedom of religion or belief. Indeed, the case law already recognises and gives significant deference to differences that exist from State to State in interpreting and applying Convention rights. This is called the ‘margin of appreciation’. 

It is questionable whether the clarification that the briefing notes mention is necessary; indeed, it is likely to be damaging. If the obligation to take into account Strasbourg case law is removed, then this is likely to lead to more litigation against the UK at Strasbourg. The requirement that UK courts cannot ‘interpret rights in a more expansive manner than the Strasbourg Court’ means that where UK courts differ from Strasbourg, parameters and protections afforded by rights cannot be increased and so can only be reduced. This notably goes against the listed benefit of the Bill, that it will defend free speech, since it would mean that the domestic courts would be unable to protect freedom of speech in a more expansive manner than Strasbourg.

Such changes are likely to have a significant impact upon freedom of religion or belief. This is especially so since English law did not include a positive general right to religious freedom before the Human Rights Act 1998. Thus domestic courts have made significant use of the Strasbourg case law in understanding how to interpret the right to manifest religion or belief.

Indeed, the Strasbourg Court has played an important role in developing the understanding of the right to manifest religion or belief, and occasionally corrected domestic interpretations of the Strasbourg case law which were used to adopt overly narrow interpretations of the right to manifest. 

This concerned what is often referred to as the ‘specific situation rule’: the rule that there would be no interference with the Article 9 right to freedom of religion or belief where claimants had voluntarily agreed to a situation which limited their religious freedom. This might apply, for instance, if they had voluntarily signed a contract of employment that required them to work during times of religious observance.

A number of Strasbourg decisions had established that this rule existed where there was a contract of employment or equivalence, meaning that the person had voluntarily submitted to a situation where their right to manifest would be restricted. 

The domestic courts, however, began to understand this as a general principle that stated that there would be no interference with Article 9 where there were other means open to the person to practise or observe his or her religion. In the decision by what was then the House of Lords in R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, it was held that a school uniform policy that prevented a pupil from wearing a jilbab at school did not interfere with her Article 9 rights, since she had the option to go to another school. Numerous other cases and tribunal decisions followed this logic and effectively held that Article 9 had no application in the workplace, since the claimant could always resign and get another job.

When claimants from a number of these employment tribunal decisions took their cases to Strasbourg, the European Court of Human Rights found that the UK had breached their Article 9 rights by employing this restrictive interpretation. These included a British Airways employee who was prevented from wearing a cross at work, a nurse who was also prevented from wearing a cross and a registrar who was not allowed to refuse to conduct civil partnership ceremonies.

In Eweida v UK (2013) 57 EHRR 8, the European Court of Human Rights noted that their previous case law had applied the ‘specific situation’ rule in relation to employees, but that it was not appropriate to do so, given that the Court had not taken this approach in relation to other Convention Rights. The Court therefore corrected both its own and the even narrower interpretation of Article 9 by domestic courts, holding that:

‘where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’

The rule about the relationship between domestic courts and the European Court of Human Rights is already permissive. Weakening it further would mean that narrower and more restrictive approaches to the interpretations of rights would be likely to prevail.

The interpretation of laws

The second main element of the Bill will be ‘ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose “positive obligations” on our public services without proper democratic oversight by restricting the scope for judicial legislation.’

Thus while the first element suggests that the Bill is concerned with protecting the domestic courts, the second element undercuts this. It constrains the roles of the domestic courts by limiting the way in which they can interpret Acts of Parliament to read them in ways that are compliant with human rights. Again, this will lead to the reduction of rights. Parliament will not have the time to deal with statutory interpretation and the creation of any ‘positive obligations’. The legislature cannot realistically deal with particular issues, contexts and claims. Adjudication is, after all, the role of the courts. Such a change will mean that human rights will not be able to keep up with societal changes and so will wither. 

Like the first element, this second element seems to be based on a questionable interpretation of the current law. There is already proper democratic oversight built into the process.

The Human Rights Act 1998 requires legislation to ‘be read and given effect in a way which is compatible with the Convention rights’ (section 3(1)). It further provides that the courts can issue a declaration of incompatibility where they consider that domestic law cannot be interpreted in a way that is compliant with the Convention, leaving Parliament to change the law. Human rights law, therefore, already delicately balances power between the legislature and the courts. This is why it is likely that any rebalancing may have harmful consequences, both foreseen and not foreseen.

This is particularly likely to be true in relation to freedom of religion or belief, given that  Article 9 of the European Convention on Human Rights, which protects freedom of religion or belief, has quickly become the bedrock of this freedom in the UK. This does not only apply to Article 9 claims. Other areas of law, such as discrimination law, now rely upon Article 9 principles. For instance, in R (On Application of Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin), Article 9 was relied upon in the argument that marriage law, in not giving legal effect to humanist weddings, was discriminatory and was only justified at the time because of the ongoing review of the law by the Law Commission.

Moreover, the requirement to interpret laws as far as possible in a Convention-compatible way has been particularly important in relation to protecting non-religious beliefs. Many older legal provisions protecting religion have been interpreted by courts and other bodies to include non-religious beliefs, precisely because freedom of ‘religion or belief’ is protected as a Convention right under Article 9. For instance, in May 2018, the then Education Minister in Wales, Kristy Williams, published a letter in which she stated that it was the position of the Welsh Government that, in order ‘to ensure compatibility with the Human Rights Act 1998’, the provisions relating to the composition of Standing Advisory Councils for Religious Education were to be interpreted to permit ‘the appointment of persons who represent holders of non-religious beliefs in the same way as they permit the appointment of persons who represent holders of religious beliefs.’

Weakening the Human Rights Act could mean turning back the clock in terms of recognising and protecting non-religious beliefs – and there will be countless other similar examples in relation to other Convention rights.

The interpretation of rights

The third and main element of the Bill will be ‘guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.’ The fourth element of the Bill is ‘recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award’.

The phrasing of the third element raises the question of what is a ‘spurious’ case. The domestic Article 9 case law already requires that the religion or belief should be genuinely held. This is often expressed in terms of religion or belief needing to have a level of ‘cogency, seriousness, cohesion and importance’. However, adjudicating this is tricky and troublesome. As the Strasbourg Court re-articulated in Eweida v UK, determining the genuineness of the claim ‘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.’ The role of the court is to determine whether the claim is made in good faith, not whether it is a good faith. 

Requiring that there be a ‘significant disadvantage’ before Article 9 claims can be brought would be contrary to the Strasbourg case law, since it creates a higher threshold. This would be particularly jarring since the Strasbourg case law has relaxed previously articulated thresholds such as the specific situation rule. Furthermore, Eweida v UK articulated again that in order to be a manifestation, the act must be ‘intimately linked’ to the applicant’s religion or belief, but stressed that the existence of a sufficiently close and direct nexus between the act and the underlying belief must bedetermined on the facts of each case. The Strasbourg Court stated clearly that ‘there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question’.

It remains to be seen how the domestic judiciary would interpret any requirement of a ‘significant disadvantage’. Domestic law on indirect discrimination on grounds of religion or belief requires proof of a ‘particular disadvantage’ (Equality Act 2010, section 19); it is unclear as to whether this ‘disadvantage’ requirement has had a detrimental effect there.  However, domestic cases in the aftermath of Eweida v UK suggest that a restrictive approach is already being taken. Cases such as Lee v Ashers Baking Company [2018] UKSC 49 and Kuteh v Dartford and Gravesham Trust [2019] EWCA Civ 818 either do not mention Eweida or dismiss it as not being relevant. This suggests that erecting further thresholds is not necessary and is likely to render Article 9 moribund.   

Conclusion

Particular human rights decisions will inevitably be controversial, divisive and questionable, especially if amplified and distorted through parts of the media and through a political discourse that seeks to demonise the legal profession. It is the very nature of a court case that there are two possible and plausible outcomes. The fact that some decisions in relation to some rights have resulted in decisions that some politicians disagree with is not grounds for tearing down the whole human rights framework. 

Human rights law has settled down over the last twenty years. This is notable in relation to freedom of religion or belief. Specific cases and issues have, of course, proved controversial. Different views can be taken about issues that have arisen, including the wearing of religious dress and symbols, the operation of religious courts and tribunals, and the use of freedom of religion or belief as a defence against claims of discrimination on grounds of sex and sexual orientation. And criticisms can be made of the decisions and reasonings of courts and tribunals. However, overall, it is clear that protections have grown, and there is an increased awareness that freedom of religion covers non-religious beliefs too. There is much more that needs to be done, but the Human Rights Act 1998 has been of pivotal importance in getting us to where we are and in protecting rights. 

The Bill of Rights, or whatever it ends up being called, risks undermining this and, judging by the briefing notes, will reduce protection. This will allow governments and public authorities to trample over the rights that we currently enjoy. The Human Rights Act 1998, though not perfect, already strikes an appropriate balance. The reference to the Bill of Rights in the Queen’s Speech got it wrong. The new Bill would not defend the constitution. Rather, it is an attack on it, and risks unbalancing the power between the legislature and the courts.

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In Cohen’s view, ‘freedom of conscience’, as advocated by the Archbishop, ‘ought to mean that in matters of opinion there should be at least equal freedom of expression, with the understanding that with some questions that freedom cannot be absolute.’ But in fact the Church’s understanding of ‘freedom of conscience’ extended to religious privileges, such as enforcing blasphemy laws on non-believers, keeping bishops in the House of Lords, and requiring the King to swear a coronation oath in which he had to ‘avow his belief in a special form of religious belief.’

This article was written at a time when the ideas and values of civilised society were being threatened on all sides. The abuses of the War would eventually lead to the drafting of the UN’s Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950). In both of these documents, ‘freedom of thought, conscience and religion’ is a separate right from ‘freedom of expression’. In contrast, Cohen here analyses freedom of conscience as effectively a form of freedom of expression. He notes the extent to which religious organisations can use ‘freedom of conscience’ as an excuse for imposing their views on others, thereby restricting freedom of expression for them. The clash between the two rights continues today.

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