Introduction: the meanings of religious neutrality

It is often said that the state should be neutral in matters of religion, but neutrality is a problematic concept, capable of several different meanings. Despite that, the term is on the whole less problematic than ‘secular’. Several authors have noticed the differing senses of ‘secular’ when used in relation to the state (Taylor, 2009): from its original meaning denoting a division in jurisdiction between political and religious authorities (Benson, 2000) to official indifference (Rivers, 2010) or antipathy towards religion. Even in states such as France with constitutional provisions on secularity there can be considerable debate as to meaning (Laborde, 2008). Debates using the term ‘secular state’ are now so prone to terminological confusion that for the present purpose, in discussing the jurisprudence of the European Court of Human Rights (ECtHR), it is more helpful to focus on different aspects of neutrality.

Of these the least controversial perhaps is the duty of state officials to behave impartially, that is without judging between the merits of different religions and in a non-discriminatory way. Even this does not prevent controversy over whether there is scope for recognizing the religious beliefs of officials over matters of conscience in the workplace or whether to do so compromises the state’s position, as in Ladele v. London Borough of Islington (Malik, present volume). Beyond impartiality, however, conceptual controversy begins and at least four further variants can be identified, with different implications for both individuals and religious organizations. One strand stresses neutrality as the equi-distance of the state from all religions so they are treated even-handedly and none is favoured. This is often taken to entail separation of religion and state, although strictly it does not entail that. A second strand focuses on strict equality of treatment of religions by the state.

According to a book title chosen by one commentator on the UK's Human Rights Act 1998, Professor Francesca Klug, human rights are Values for a Godless Age. No doubt before the events of September 11 2001 the secularization thesis had a certain resonance. The legislation could be seen as a (very faint) shadow of that great hymn of the secular state — the French Declaration of the Rights of Man. Certainly some religious organisations feared that rather than the Human Rights Act 1998 enhancing their religious freedom it would be used against them and they therefore sought — unsuccessfully — guarantees against litigation in the form of exemptions. A decade later, the revolutionary fervour has cooled somewhat and an assessment can be made of the treatment of religious liberty under the Act to date. We now know also that the obituary notices for religious faith were premature, even in (comparatively) secular Western Europe: ‘God is Back’ as another recent book title has it. Indeed, the resurgence of a vigorous religious discourse in public life in the UK is perhaps not just a reaction to secularization but in a sense also evidence of a growing human rights culture following incorporation of the European Convention.

The focus in this chapter is on a handful of the more controversial religious liberty claims that have come before the courts since 2000. I have selected these for the range and variety or issues that they raise directly concerned with claims to manifest religious belief. These include whether Christian parents have a right that their children be educated in private schools in accordance with their religious beliefs on discipline; whether a Muslim schoolgirl has the right to wear a jilbab, contrary to the school uniform policy of her (mixed) state secondary school; whether a Hindu community can resist an order for the destruction of a diseased bullock of sacred religious significance to them; and whether orthodox Hindus should be accommodated in their wish for cremation upon an open-air funeral pyre.

Introduction

Common lawyers tend to be somewhat apologetic about legal reasoning. It is not that they consider it to be an oxymoron. Rather, the subject is seen as too basic – not worthy of advanced investigation. This is perhaps because law students ‘cover’ ‘Legal Method’ at an early point in their studies and assume that, having mastered precedent and statutory interpretation, they can leave it behind in favour of more intellectually challenging topics. It is hard to imagine that a professional seminar in the United Kingdom on the topic of Legal Method would attract the involvement of virtually every senior member of the judiciary – as happened in New Zealand in 2001. Likewise, academic attention devoted to legal reasoning is marginal in comparison to substantive analysis, and is mostly reserved for ‘Jurisprudence’ (the thinking lawyer's diversion) under the guise of theories of adjudication.

However, this is an entirely appropriate focus for a study of the early impact of the Human Rights Act. It is not necessary to believe the New Labour hyperbole (in the days when ministers were still proud of the Act, rather than disowning its progeny) about the biggest legal change since Magna Carta. It is enough to acknowledge that comparing judgments before and after the Act that a major shift has occurred in their style, content and source material.

Introduction

English administrative law had, prior to the Human Rights Act, failed to develop effective protection for human rights against incursions by public officials and authorities. Much of the blame for the parlous defence of civil liberties and human rights can be attributed to the judges’ sentimental attachment to the Wednesbury test as the appropriate standard for reviewing official action. Under this test, action was only reviewable if it was so unreasonable that no reasonable decision-maker would have taken it. Long criticised for its circularity, imprecision and excessive deference to the executive, Wednesbury nevertheless continues to hold considerable sway.

Its influence can be seen clearly in Brind, in which – a mere fifteen years ago – the House of Lords ruled that the Home Secretary was not legally obliged to consider the Convention right of freedom of expression when imposing restrictions on television and radio interviews with people connected with a terrorist organisation. Their Lordships considered that to hold otherwise would amount to what they described as ‘back door’ incorporation of the Convention and that they should not rush in where (at that time) Parliament had chosen not to. The Convention's relevance was limited to instances of statutory ambiguity – something which in the circumstances of the case (concerning a very wide power to give ‘directions’ to broadcasters) their Lordships were reluctant to find.