The Revd Allan Macdonald was inducted as Free Presbyterian Minister at Daviot, Tomatin and Stratherrick in 2001. He received neither a written contract of employment nor a statement of terms and conditions. In 2006 he wrote book, Veritatem Eme, that was highly critical of some aspects of the life of the Church and was ordered to apologise. He refused to comply, was temporarily suspended in January 2007 and suspended from the ministry sine die – in effect, dismissed – in May 2008.

We continue to live in the remains – as opposed to the ruins – of a confessional state. Ruins may be picturesque but have no life. Remains, however, do have being. The fact that the remains exist formally only in England does not mean they have no impact elsewhere in the UK. On the contrary, they continue to have life at the very apex of the constitution.

The Labour Government (1997–2010) created a large number of new laws affecting religion. The Blair and Brown years saw the incorporation of Article 9 of the European Convention on Human Rights into domestic law, the creation of religiously-aggravated offences, the recognition of civil partnerships, and a tide of legislation affecting education, charities and equality law, which saw the extension of the law to cover discrimination on grounds of religion or belief. And all this legislation has resulted in an abundance of case law. There is more ‘religion law’ – national and international law affecting religion – than ever before. And, for some time, there has been an implicit tension in English law between this new religion law and older laws protecting religion. These old laws, many still on the statute books, were based upon a different premise. They often sought to protect Christianity in general (or the Church of England in particular) as the norm, while providing some degree of toleration for other faiths. Moreover, the legal regulation of religion was characterised by a lightness of touch. The new religion law, by contrast, is facilitative, seeking to protect religious freedom mainly as an individual right which needs to be balanced against other rights. No special protection is afforded to any one religion and protection is often afforded to non-religious beliefs. The new legal framework affords utmost importance to the concept of religious neutrality as the State takes on the role of facilitating the religious market place. The tension between the old laws on religion and the new ‘religion law’ can be seen, for example, in the abolition of the offence of blasphemy (which favoured the Church of England in particular) and its replacement by offences concerning religious hatred (which covers all religions). This tension has recently come to the fore in the Court of Appeal ruling in the application for leave to appeal in McFarlane v Relate Avon Limited.

The European Court of Human Rights has adopted a narrow and restrictive approach to the protection of religious freedoms which is inconsistent with some of its own judgments about the importance of religious freedoms. This narrow and restrictive approach has necessarily influenced the approach of the Courts in England and Wales, and the approach is not supportable on any principled grounds. This article examines what has gone wrong, and makes some suggestions for the future.

I write after the advice of the archbishops in July 2009 on restricting the use of the common cup has been withdrawn. It came under attack during its period of currency, not only on the grounds that it was medically quite unnecessary, but also on the interesting grounds that it was in violation of the Sacrament Act 1547. The Act concedes that the distribution of the cup would be the norm ‘except necessity otherwise require’. The swine flu alarm raised the issue of how to handle the necessity. This Comment arises from the alternatives which were then commended – intinction or distribution in one kind (bread) only (hereafter called ‘one-kind’). The discussion here concerns solely the duties of officiants at Holy Communion, and does not do more than touch in passing on how an individual communicant may respond.

In December 2009 the Supreme Court by the narrowest of margins (5 to 4) found against the Governing Body of JFS (formerly called the Jews' Free School) on the basis of direct race discrimination. Consequently, schools run by Jews, Sikhs and any other faiths that happen also to be an ‘ethnic group’ are barred from giving priority to children who are members of that faith. As is well known, the very broad definition of ‘ethnic group’ was set by the House of Lords in Mandla v Dowell-Lee at a time when the protections afforded by the more recent laws against religious discrimination were lacking. The majority in the Supreme Court evidently, and with some justification, considered that this definition was sufficiently settled law that only a legislative, and not a judicial, intervention could alter it. In contrast, those faiths and denominations that avoid falling into the Mandla trap, may continue to give priority to their members in admission to their schools. A number of commentators have confidently predicted that this case does not therefore affect most other schools with a religious character. Such a conclusion may be somewhat hasty. The minority held that this was a case of indirect, rather than direct, discrimination and, as such, potentially subject to justification. Perhaps the most surprising element of the judgment is that, unlike Mumby J at first instance, a majority of the Justices did not find it self-evident that a Jewish school giving priority to Jewish applicants in its admissions policy was a proportionate means of pursuing a legitimate aim.