The secularisation of English and Scots law? A reflection

Introduction

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, https://lawandreligionuk.com/2014/02/01/the-secularisation-of-english-and-scots-law-a-reflection/

5 thoughts on “The secularisation of English and Scots law? A reflection

  1. Frank, in reply to,

    “… precisely what kind of Christian law do they want? A virtually total ban on abortion …? … … 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.”

    We do not need Christianity to know that abortion is wrong. It is the said principles of “truth, equality, justice and care for the weak and powerless” themselves, which tell us all that abortion is wrong.

    All that Christianity adds to informing decisions about abortion is its teaching that right and wrong *matter*.

    It is tiresome to argue against abortion using a simple argument that includes no religion whatsoever, but which is based upon nothing *except* “truth, equality, justice and care for the weak and powerless”, only to be lambasted by those who are in favour of abortion, who have not answered one’s secular argument against abortion, but have instead ridiculed a straw man “religious” argument one never used in the first place.

    As one leading abortion provider’s spokesman put it,

    “ We can accept that the embryo is a living thing in the fact that it has a beating heart, that it has its own genetic system within it, it’s clearly human in the sense that it’s not a gerbil and we can recognise that it is human life… but the point is not when does life begin but when does it begin to matter. ”

    [ Ann Furedi, Chief Executive of the British Pregnancy Advisory Service ]

    Ann Furedi here acknowledges the *truth* about what abortion *is*, and *does*, to *whom*. She does not proceed to scrutinise her own livelihood in the light of the principles you listed. If she did, she would have to acknowledge that abortion breached those principles, and was therefore wrong. Instead she makes a bee-line for her desired conclusion (that her job isn’t wicked after all), by appealing to her *denial* of the principle that what we do, whether right or wrong, including taking the lives of our fellow humans, *matters*.

    The lives of the humans aborted don’t matter, in Furedi’s view, not because abortion conforms to the principles of “truth, equality, justice and care for the weak and powerless”. Rather, she thinks that her victims’ lives don’t matter because she does not believe that any court exists in which justice will ever be granted to the “weak and powerless” humans whom her industry butchers in their millions. That is the *only* manner in which Christianity ever becomes relevant to abortion decisions, either of public policy, or taken by individual pregnant mothers and their medical doctors. Abortion decisions matter (or matter more) to Christians, because Christians believe that “Christ Jesus, … will judge the living and the dead” [2 Tim 4:1].

    Is abortion an injustice that *matters*, because it is justiciable in a higher court than any court of mankind? Christians believe so. If they are wrong, then (as Queen sang in Bohemian Rhapsody), *nothing* really matters. Strawberry Fields Forever, so-to-speak. If Christians are right, and our ethical and unethical decisions do matter. They *really* matter. Perhaps Beelzebub has a devil set aside for Ann Furedi, so-to-speak.

    So please don’t think that abortion is wrong according to Christianity, for some mumbo-jumbo superstitious reason, but right according to (say) the “atheists and agnostics” whom you suggest “also” “support” the principles of “truth, equality, justice and care for the weak and powerless”. Support for abortion requires one to discard the said principles, or, as the judiciary like to put it, to “disapply” them, in the cases of the human victims of abortion.

    Please also see “The mumbo-jumbo of choice” on my blog.

  2. John

    I think we’re somewhat at cross purposes. The point that I was trying to make (obviously not clearly enough) is that abortion is one of the areas on which there appear to be differing views among Christians just as among the population at large. That is merely a matter of observation: I’m sure that you, like me, know Christians who are not opposed to abortion just as you know Christians who are.

    Whether or not abortion is objectively wrong is another matter entirely – and not one that I sought to address in my post.

    Frank

  3. I think the problem we have is not in the nature of religion, but the nature of reality.

    If one is a Christian (or adherent of any other theist religion) then God – and God’s views – are real and a legitimate legal system must take account of them. Not to do so is to ignore important concepts and thus leave massive holes in the regulation of societal structure and behaviour, or even to actively encourage actions that are morally wrong. If your perception of reality is that homosexual behaviour is morally wrong and harmful to society, then legalising same-sex marriage is on the same spectrum as legalising murder.

    On the other hand, if one does not subscribe to a belief-system (or view of reality) that considers homosexual behaviour to be harmful and morally wrong, then it is right and good that people who are homosexual should have the same facility to marry as those who are heterosexual.

    The trouble with attempting to decide which view of reality is correct is that the answer depends on the factors taken into account while performing the calculation. The Christian includes God – the atheist does not. It’s hardly surprising that they often come to different conclusions. If the Christian does not include God in the calculation, this is a tacit admission that there is a morality that transcends God (the Euthyphro dilemma rides again) – and that has its own implications. If you judge morality without considering the word of God, can you call yourself a Christian? (Or insert religion of choice.)

    Regarding the origin of the law, I would take issue with the assertion that principles of truth, justice, protection of the weak etc derive from either the Old or the New Testament. Yes, they are mentioned there – but these concepts are universal and the basis of (as far as I know) all legal systems, not just those with a Judaeo-Christian tradition. To claim Christian ownership of these concepts is as ridiculous as to claim that atheists cannot be moral.

    Philosophers have been arguing for centuries about the origin of morality, and consequently I shan’t be holding my breath for a solution. Fortunately, the English legislature and courts do not have to find the answer. They merely have to create and maintain a legal system that is fair to all, and finds the optimum balance of individual freedom and protection of the rights of others. The UK constitution is partly based on the concept of residual freedom: the freedom to do anything that is not forbidden. The corollary to that is that the state should not forbid things without good reason. When there is a general consensus that an activity (theft, murder) should be forbidden for the good of society, then it is forbidden. But when there is no consensus, then the matter falls to logic and reason, taking into account the views of the majority. There is increasing evidence that homosexuality is not objectively harmful, and increasing numbers of the population do not believe it to be morally wrong. Hence the steady erosion of the laws against it (since the death penalty for buggery was abolished in 1861) until we have reached the point where it is not only not illegal, but homosexual couples are starting to be given the same rights as heterosexual couples.

    Yes, the legal system is becoming increasingly secular – but to equate this to a diminution in quality would be wrong. They have had to pick a view of reality, and have decided to go with one that restricts only those behaviours that we can all agree should be restricted. Thus Ms Eweida can wear her cross at work, Ms Hodkin can get married in her religion, and it’s not legal to dismiss a staff member because they happen to be Wiccan. Equally, you cannot use membership of a religious group (even the ‘dominant’ one) to get out of your contractual duties at work (Mba), or to deny services to a person whose lifestyle you disapprove of (Bull). Your religion, whatever it is, is your own and you are free to practise it – as long as you don’t use it to harm others. And that applies to the courts too.

    • “I would take issue with the assertion that principles of truth, justice, protection of the weak etc derive from either the Old or the New Testament.”

      So would I; and apologies for not making that clear. I was writing in the context of a “religious” foundation for law: the principles of truth, justice etc can be derived just as equally from Plato, to name but one possibility.

    • @ gen

      You say that the courts “merely have to create and maintain a legal system that is fair to all, and finds the optimum balance”, and imply that happily the courts can easily embark upon this task, of deciding what is “fair” (right) and “optimum” (best), without turning their minds to “morality”. There’s nothing “mere” about such an enterprise, in my opinion. It’s rather like trying to build a house without foundations, without using bricks.

      “you cannot use membership of a religious group (even the ‘dominant’ one) to get out of your contractual duties at work (Mba)”

      I agree. However, I suspect that there might have been *some* facts that the court simply didn’t find, because Mba managed to work several years without working any Sundays, and then suddenly, she was going to have to work alternate Sundays, as per the rota, before any negotiated day-swapping with colleagues.

      I always thought that Mba should altruistically have argued an Article 8 right of herself and *all* her co-workers (with herself as a test case for all): a right to a private life that included a weekly day off. She might have won that argument, had the court thought trough a little harder the employer’s contention that it is impossible for an employer to provide seven days a week service, without making every employee take a turn at working every one of the seven days once a fortnight, so that no staff member has a weekly day off. That is how a trade union would have wanted to argue the case forty years ago (but for the absence then of the HRA), and probably won a victory for all the staff by negotiation and the threat of industrial action.

      If the right to a weekly day off were established (and it’s hard to have a private life at all without a weekly day off), people with Mba’s aspiration to have Sundays off for non-work regular commitments, would then only have had a problem if the day *she* wanted as her weekly day off (Sunday) happened to be too popular a preference. The free market mechanism for balancing the demand for the seven days as an individual’s weekly day off, is to pay higher wages for the more popular choices of day off, until the demand for each day becomes equal.

      “as ridiculous as to claim that atheists cannot be moral”

      Nobody claims that. But there are several similar-sounding claims that ought not to be controversial, which argumentative people subtly misquote as your “ridiculous” misrepresentation of what is actually being claimed, that “atheists cannot be moral”, in order to pave the way for ridiculing a “straw man” claim of their own choice.

      “people who are homosexual”

      “homosexual couples”

      Questionable assumptions underlie both these choices of phraseology.

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