The secularisation of English and Scots law? A reflection


Late last year, in response to the reported remarks of Andrea Minichiello Williams, Director of the Christian Legal Centre and a member of General Synod for the Diocese of Chichester, that Jamaica should not decriminalise male homosexual relations, her diocesan bishop, Martin Warner, made a statement to Changing Attitude Sussex in which he said that her comments

“… have no sanction in the Church of England or the diocese of Chichester. Insofar as such comments incite homophobia, they should be rejected as offensive and unacceptable”.

Not being an Anglican this is emphatically not my row. I mention it for one reason only: my suspicion that fifty years ago Ms Williams’s views would probably have gone largely unremarked because the majority of practising Christians – and a large minority of the public at large – would either have agreed with her or not felt strongly enough to get steamed up about it. But that was then and this is now; and opinions like that are generally regarded as eccentric at best and homophobic at worst, for two reasons.

First and most obviously, attitudes to same-sex relationships have changed radically over the last fifty years: the passing of the Sexual Offences Act 1967 marked an important watershed in public perceptions, following which there was a significant shift in attitudes to same-sex relationships.

Secondly, and in my view just as important, the UK is a much more secularised society now than it was in the 1960s. Even as late as 1980 11 per cent of the UK population attended church: now it’s about 5 per cent. In the 2001 Census 14.8 per cent of the population of England and Wales stated that they had no religion: in 2011 it was 25.1 per cent – not far off double.

It is impossible to say definitively whether the apparent falling-off of belief as revealed by the 2011 Census indicates that “religion” – of whatever kind – is in absolute decline or whether it simply suggests that people nowadays are less reluctant than before to admit to being non-religious. But whatever the reason behind the phenomenon of increased secularisation, when coupled with the rise in the non-Christian population it means that the largely-unexamined assumption that the UK is in some sense “a Christian country” cannot be left unexamined any longer. We have blogged about various aspects of this issue piecemeal and what follows is an attempt to draw together the various strands in a systematic fashion.

Law and “Christian” morality?

Inevitably, English and Scots law have Judaeo-Christian roots: how could they not? Both were influenced by mediaeval canon law; and Scotland was also influenced by the Roman-Dutch legal tradition. The idea of “law as applied morality” persists in both jurisdictions, as a couple of cases illustrate.

In Shaw v DPP [1962] AC 220, Shaw had published a ‘Ladies Directory’, with contact details and nude pictures of prostitutes. He was convicted of conspiracy to corrupt public morals, living off immoral earnings of prostitution and producing an obscene publication. He appealed on the grounds that there was no such offence as “conspiracy to corrupt public morals”.The Lords upheld his conviction for conspiracy and, in doing so, created a new offence. Said Viscount Simonds:

“I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State…”.

(When, recently, the Ladies Directory case came up in discussion on Beyond Belief on Radio 4, Sir Mark Hedley, lately of the Court of Protection, said that judges would simply not do that nowadays, which shows the extent to which judicial thinking has progressed.)

Much less controversially, in Khaliq & Anor v HM Advocate 1983 SCCR 483 (CCA) two Glasgow shopkeepers were charged, inter alia, with supplying glue-sniffing kits to children “to the danger of their health and lives”. They objected to the indictment because, on the charge of supplying, the facts as libelled did not disclose a crime known to Scots law: there was nothing illegal about selling Evostik in plastic bags. However, the Court of Criminal Appeal upheld the charge on the indictment because the two shopkeepers knew perfectly well what they were selling and why the children were buying the items. Lord Justice General Emslie was of opinion that

“There is ample authority for the view that the wilful and reckless administration of a dangerous substance to another causing injury or death is a crime at common law in Scotland”.

Law as “applied morality”, maybe – but there is nothing in either of those cases that is particularly “religious”. Save for diehard foaming-at-the-mouth libertarians, surely no-one – Christian, Muslim, Baha’i, Scientologist, militant atheist or whatever – would support selling glue-sniffing kits to kids (though Parliament had to make it a statutory offence before it could be prosecuted in England & Wales). Equally, most people probably still feel, for all sorts of reasons, that prostitution is something that should be discouraged, or at least strictly controlled.

When people talk about “secularisation” in relation to law (or, more accurately, when people complain about “secularisation”), what they usually have in mind is the increasing reluctance of the courts to invoke “religion” as a criterion for their decisions. However:

  • first, not taking a view on religious issues as religious issues has quite a long history in both jurisdictions; and
  • secondly, there has been a decisive shift in judicial thinking (or so it seems to me) from the unreflective assumption that, in some undefined way, English and Scots law are underpinned by “Christianity” of whatever kind.

As to the first, the case that established the rule for England & Wales (though not, it should be remembered, for Scotland) that matters of purely private law are not judicially reviewable happens to be about a religious matter – R v Chief Rabbi of the United Hebrew Congregations of Great Britain ex parte Wachmann [1992] 1 WLR 1036 – and Simon Brown J held that a decision of the Chief Rabbi to terminate a congregational rabbi’s employment was not reviewable because the court was not going to get involved in an internal religious dispute. Similarly, in Blake v Associated Newspapers [2003] EWHC 1960 (QB) Gray J stated at paragraph 21 that:

“It is well established … that the court will not venture into doctrinal disputes or differences. But there is authority that the courts will not regulate issues as to the procedures adopted by religious bodies or the customs and practices of a particular religious community or questions as to the moral and religious fitness of a person to carry out the spiritual and pastoral duties of his office”.

 And there are several later cases in a similar sense.

As to the second point – the shift away from the assumption that English and Scots law are in some sense “Christian” – current judicial thinking was to some extent crystallised by the Court of Appeal judgment of Laws LJ in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 (which is quoted, I fear, ad nauseam in this blog), provoked by a witness statement in support of Mr Gary McFarlane from former Archbishop of Canterbury George Carey, in which he argued for a sort of “Religious Division of the High Court” to adjudicate cases involving religion. I imagine that, in the circumstances, Laws LJ could not avoid dealing with it – and he did so in no uncertain terms, concluding like this:

“24. The promulgation of law for the protection of a position held purely on religious grounds cannot … be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs…”.

And that is the crux of the matter. We do not live in a society where all the people share uniform religious beliefs…”. More than that, we do not even live in a society where all Christians share uniform religious beliefs. Christians, even Christians of the same denomination, often disagree quite heatedly about issues such as capital punishment, military intervention overseas, abortion, same-sex marriage and sexual equality – to name only a few of the more obvious areas of contention.

Fast forward to the keynote address by the President of the Family Division, Sir James Munby, at the Law Society’s annual Family Law Conference: “The sacred and the secular: religion, culture and the family courts“ Sir James’s conclusion, in a nutshell, was that secular judges “must be wary of straying across the well-recognised divide between church and state” and that

“… reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition”.

Which is very much in line with what Laws LJ was saying in McFarlane. And as we noted subsequently, Sir James’s view was supported by the new Lord Chief Justice, Lord Thomas of Cwmgiedd at his first press conference after taking office – to what can only be described as mixed reviews.

“Christian” law?

A piece on the Cranmer blog (which is nothing whatsoever to do with us) entitled “Sir James Munby – High Priest of Secularism“, asks “What are the foundations of British notions of virtue and morality if they are not Christian? What is the basis of English law if not Christian?”

As implied above, few if any would seriously dispute that the historical basis of English (and Scots) law is Christian; and Laws LJ said as much in McFarlane at para 21: that “The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of law-makers as to the objective merits of this or that social policy”. But he points out in the previous sentence that though “The general law may … protect a particular social or moral position which is espoused by Christianity” it does so “not because of its religious imprimatur, but on the footing that in reason its merits commend themselves”.

Moreover, if people really want “Christian” law, then precisely what kind of Christian law do they want? A virtually total ban on abortion as, until very recently, in both parts of Ireland? The restoration of capital punishment: “an eye for an eye”…? The restoration of the right of parents on religious grounds to allow teachers to beat their children, on the principle “spare the rod and spoil the child”? The return of the laws against Sunday trading in England and Wales? The repeal of the Sexual Offences Act 1967? Some Christians would no doubt sign up to some or all of these; equally, others would be vehemently opposed.

And if what people are arguing for is law based on some kind of “Christian principles”, precisely to what principles are they appealing? Truth, equality, justice and care for the weak and powerless  which almost all mainstream Christians in the UK would sign up to  derive as much from the Old Testament as the New: and Muslims, Sikhs, Hindus, Buddhists, Baha’i and, for that matter, atheists and agnostics, would support them as readily as would Christians and Jews.

I have previously suggested that if there can be no bright-line test for limiting the reach of the secular law into matters religious, there can, equally, be no bright-line test (at least in my submission) for what is “Christian” and what is not. A group of bishops of the Episcopal Church in the US attempted to define what they described as “the Core Doctrine of this Church” in Stanton v Righter [1996] Ct for the Trial of a Bishop  and, in my entirely disrespectful opinion, did a fairly mediocre job of it. And even if there were universal agreement on the essential nature of Christianity, in matters of family law especially – which was what Sir James Munby was primarily addressing – the overriding consideration would still have to be the best interests of children. So if a Christian husband and a Muslim wife split up, the courts can hardly decide between them on the principle, “Christian good, Muslim less good”. The ECHR would not allow that – and neither, nowadays, would public opinion.

Three points in conclusion

First: all judges take an oath or make an affirmation to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. And that means judging according to the law and nothing else.

The issue came up in Helow v Secretary of State for the Home Department & Anor [2008] UKHL 62when the appellant, a Palestinian who had been refused leave to appeal against the decision of an Immigration Tribunal had then petitioned the nobile officium of the Court of Session. Her crave had been that Lady Cosgrove’s interlocutor refusing leave to appeal should be set aside on the ground that it was vitiated for “apparent bias and want of objective impartiality” because her Ladyship was a member of the International Association of Jewish Lawyers and Jurists. Neither the Inner House of the Court of Session nor the House of Lords was persuaded – though Lord Walker of Gestingthorpe did point out that the judicial oath was not of itself a panacea (para 27). Lord Rodger of Earlsferry summed up the position at para 23:

“… Lady Cosgrove [is] a professional judge. Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience. Like jurors, they swear an oath to decide impartially”.

In short, personal beliefs or prejudices have to be left at the door of the court – and that is what judges try to do so far as is humanly possible. We all know that: and would anyone suggest that they should do otherwise? And if it were otherwise, would the resulting trial be compliant with Article 6 ECHR? And could anyone – of whatever religious or political views – seriously suggest that we should hold trials that were not compliant with Article 6?

Secondly: a lot of the complaints about “the secularisation of law” have focused on areas like wearing religious symbols and religious manifestations in relation to employment: cases like Eweida and Ladele. And when the courts do assert religious rights – as the Supreme Court recently did in Hodkin – at least some people start complaining about it. The response to Hodkin in some quarters was that the SC had been wrong to regard Scientology as a religion at all.

Thirdly: might it be that at least some of those who complain about the secularisation of law are basing their objections, at least in part, on a subliminal distrust of the Human Rights Act 1998 and the ECHR?

Or am I seeing bogeymen where none exist?

Frank Cranmer

Cite this article as: Frank Cranmer, "The secularisation of English and Scots law? A reflection" in Law & Religion UK, 1 February 2014,