‘One man's meat is another man's poison’ is one of those sayings that does not roll off the tongue quite as neatly when rendered in less gender-exclusive language: ‘one person's freedom of religious expression is another person's harmful or oppressive action’ is hardly a phrase that will catch on. However, the question of whether a right to freedom of religion may be matched by a right to be free from religion is a question which caught the collective imagination of the law and religion community in 2016. The day conference of the Ecclesiastical Law Society in March 2016 was entitled ‘Freedom of/from religion’, while the conference of the International Consortium for Law and Religion Studies in September was entitled ‘Freedom of/for/in religion: differing dimensions of a common right?’ This nineteenth volume of the Journal begins with the text of Lady Hale's keynote address at the March conference in which she unpicks the principles and the challenges that face judges in the UK and Europe when faced with competing claims to freedom of, or from, religious practice. Supporting this keynote paper are comment pieces by David O'Mahony, Chairman of the Catholic Union of Great Britain, and Caroline Roberts, as well as a report on the goings-on at the ICLARS conference in Oxford. Additionally in this issue we read an important contribution from Professor Neil Foster about liability and the personality of church bodies where claims for damages are concerned. As traditionally in the first issue of each volume, there is a round up of the legislative and other activity of church synods and assemblies.
The last issue of the previous volume came out in the uncertain aftermath of the European Union referendum. While the future has not been made significantly clearer in the months that have followed, the Prime Minister and the Secretary of State for Exiting the EU used Conservative Party Conference speeches to reveal some of the headlines of the ‘Brexit’ process. Those headlines that caught this editorial eye were the prospect of an Act to repeal the European Communities Act 1972, wherewith, in the words of David Davis, ‘EU law will be transposed into domestic law, wherever practical, on exit day.’ The alteration of any or all of those laws would then follow at a pace to be determined according to the agenda of the government of the day.
Scholars of the history of the church will recognise this process. Comparisons have been made between the UK leaving the EU and the Reformation. In the year when the world marks the five hundredth anniversary of Luther nailing his ninety-five theses to the church door, the comparison between the turmoil of that period and the current one can be overstretched. However, in England and Wales significant changes were made to church life by the bringing onshore of powers formerly vested in Rome, from the appointment of bishops to the granting of marriage licences. Pre-Reformation canon law may still apply in the Church of England, according to the judgment in Bishop of Exeter v Marshall (1868) LR 3 HL 17, if it has not been repealed and has been in continuous use. When overseas dioceses gained juridical independence from the Church of England it was usual for the canon law of newly erected provinces to be, in the first instance, the canon law of the Church of England as it applied in those dioceses on the day that the new province came into existence. Thankfully, when the disestablishment of the Church in Wales took place, nobody thought to term it ‘Walexit’.