Clinton Bennett
Westminster College, Oxford

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Berlin, Germany, May 29-31, 1998

A government publication, Aspects of Britain: Religion (1992) claims that “Britain has a long history of religious tolerance” (p 3). I think that this tolerance is comparatively new. This same publication understates the degree to which the established church in England, the Church of England, enjoys privileges, which not even the established church of Scotland enjoys.

Measures curtailing the freedom of non-Anglicans, including political and educational disabilities, were not all lifted until the end of the last century. Albeit, the Church of England has of recent years tended to use its privileged position to act as a watchdog for all religious concerns, to help safeguard religions’ place within society, education, the media, and so on. The Bishop of Birmingham, speaking in the Lords, has recently stated,

We are concerned not for privileges but for the protection of conscience, a proper pluralism in our society and the proper integrity and autonomy of the churches and other religious traditions in this country.

Tariq Modood has written that, given the Anglican establishment’s “relative openness to other denominations and faiths seeking public space” it would be “dishonest to suggest that religious equality and empowerment of the new minority faiths begins with a critique of establishment.” Bishops of the Church of England sitting in the Upper Chamber, and the Monarch’s headship of the Church, does mean that religion stands in a formal, constitutional relationship with the State. Some religious bodies, for example, the Methodist Church, are also regulated by a private Act of Parliament. Others gain their legal status under the Charity law—alongside education and the relief of poverty, promoting religion is a recognized charitable objective. Indeed, apart from charity registration, or commercial company registration, there is no other form of legal incorporation available to religious bodies. Proposals made elsewhere for separate procedures for registering religious bodies have, so far, been resisted.

Britain does not possess a written constitution so there is no constitutional clause guaranteeing religious freedom. However, Britain is signatory of international covenants, which guarantee religious freedom, and/or which outlaw religious discrimination and incitement to religious hatred. Most significant of these is probably the 1950 European Convention on Human Rights (article 9 guarantees freedom of religion; article 14 prohibits discrimination on grounds of religion). Consequently, religious freedom is recognized as a right within the UK but there will be easier and more immediate recourse to legal enforcement or complaint when the Human Rights Bill currently before parliament has been passed. This intends to fully incorporate the European Convention into UK law. I shall have a little more to say about this bill later. In Northern Ireland, it is illegal to discriminate on religious grounds but the rest of the UK does not have an anti-religious-discrimination law. The Commission for Racial Equality has recommended the introduction of “a law on incitement to religious hatred, and probably also a law prohibiting discrimination on religious grounds.” Extending the 1976 Act to include “religion” has also been considered but there is no immediate plan to introduce legislation.

Other acts of parliament incorporate religion within certain educational and social provisions—prisoners of any faith have a statutory right to practice that faith and to be ministered to by a representative of their faith although only Anglicans are full-time chaplains. I am not aware that the Armed Services have employed any Muslims or Hindus as chaplains. This is the case in the Hospital Service, where there is now a formula, derived from the religious demography of the catchment area, for working out chaplaincy entitlement. Religious Education is part of the National Curriculum—parents can withdraw their children from this and from the compulsory daily act of collective worship. The clause in the 1988 Act is complex. I think that it does privilege the Christian tradition but it also states that religious education must take account of the other principal religions represented in Great Britain, and it opens up membership of the statutory standing advisory councils on religious education to representatives of these “principal” traditions. Religious education must also take note of the age, aptitude and background of pupils in every school. The religious education provision was probably drafted with the 1985 Swann Commission report’s concern in mind—to achieve a balance “between the maintenance and support of the essential elements of the cultures and lifestyles of all ...ethnic groups, and ... the acceptance by all groups of a set of shared values.” For the same reason, John Habgood has argued for the established status quo; in his view, the British model is one of a “major cultural influence, Christianity, tolerating and affirming subcultures.”

My diagnosis of the state of religious tolerance health in Britain is that we are not dealing with a sick beast. However, there are potential problems. Who qualifies, as a Christian, or as a Muslim, for membership of a SACRE? Could an Ahmadi Muslim or a Unification Christian serve? Can the teachings of these minorities be included in religious education—they are not amongst the big six identified in the 1994 Model Syllabuses but they might reflect the background of pupils in a given school. How do the Charity commissioners decide who deserves charitable status? Are there religious practices, which the Prison Service would not condone? There are no agreed on definitions.

An amendment to the human rights bill, introduced in the House of Lords, attempts to define what is protected by the religious freedom and anti-discrimination clauses of the convention and of the Fugitive Act. As yet another attempt at definition: a manifestation of religious belief in accordance with the historic teaching and practices of a Christian, or other principle religious tradition represented in Great Britain. You will recognize the words are taken from the 1988 Education Act, which is now clause 2-4 of the bill currently before the House of Commons. It began its life in the Lords, had its third reading on 6 February, and is now before the House of Commons. Clause 2-5 states, for the avoidance of doubt, that the teaching and practices referred to in subsection 4 above, do not include any teaching or practice, which contravenes criminal law. Clause 2-7 states that manifestation of religious belief shall be taken to include actions such as worship, observance, conformity to a moral or ethical principal, practice, teaching, and employment policies.

Some commentators interpret Clause 2-4 as excluding Scientology and the Unification Church, specifically referred to by Lord Lester of Herne Hill, whose comments were concerned with “keeping out crank religions so they would not be protected by the provisions of the act.” The Bishop of Ripon reassured him that, under the clause, “Muslims are within and Moonies are without.”

In the House of Commons, speaking on 20 May, a member observed that the proliferation of new religious movements could result in a sun-worshipping sect being placed on the same level as the Church of England, and added that even the most charitable view of sun-worshipping sects would not grant them such a status.

It is, however, not clear who has the right or authority to decide who is Christian, Muslim and so on. I was brought up as a Baptist in Australia, believing that Roman Catholics were in no sense Christian. I have a book by J. Oswald Sanders on cults, and chapter one describes the Roman Catholic Church as the biggest and most evil cult of them all. In this view, Roman Catholics do not fall within the provision of the Education Act, or of the Human Rights Bill. I do not think that that the exclusion of, for example, the Unification Church, is a fait accompli. But I concede that there is cause here for legitimate concern among those of us who believe, as I stated at the outset, that religious freedom, as a right, is universal and indivisible. Unitarians, Seventh Day Adventists, some Shi’ia Muslim groups, and many other groups, may not qualify as principle religious traditions.

The drafters of the amendment clearly think that some groups are undesirable. It may or may not pass through the Commons, where some concern has already been expressed that the amendment breaches the convention, by giving primacy to the rights of certain religions. I prefer to allow any claim to be religious, until and unless the claimant infringes existing civil or criminal laws.

Concern has also been expressed about the freedom of religious bodies, under the act, to discriminate in employing those who are in sympathy with their beliefs. Prima facie in contravention of Article 14, it ought to control the intake of church or of mosque related schools which receive public funding. Might ministers not be prosecuted for refusing to solemnize marriages—same sex marriages, marriages involving divorced people—contrary to their own religious beliefs? Speaking in the Commons on 20 May, Sir Brian Mawhinney said they are concerned that religious organizations may be sued. The Muslims refuse to have a woman as an imam, the synagogue refuses to have a woman as an orthodox rabbi, and so on.

A complication here is the blurring of public and private. All citizens have a statutory right in England and Wales to the administrations of Anglican clergy. Therefore, their function may be thought more in the nature of public service, than a private professional practice. That is, citing a recent

judgment of the European Commission, as regards exclusive blasphemy laws, two in the United Kingdom, are discriminatory. They apply now to the Christian religion generally, and to the teachings of the Church of England in particular. Yet, if extended to include all beliefs, this would produce the ludicrous scenario of secular judges, or perhaps even a secretary of state—possibly antagonistic to religion per se—resolving theological disputes. Our theologians cannot resolve theological disputes. I don’t think we should turn it over to the courts. Earl Russell, speaking in the Lords, said that if he were a judge, he would not be happy to have such matters come before him, because these are questions in which the authority of the law is not particularly well placed.

The problem of defining religion continues to occupy scholars as well as politicians, and rightly so. If we do not have legislation such as the punitive Human Rights Act, which protects religious freedom, it may be eroded and there will be no legal redress available to us. If we have legislation, the question of who is, and who is not, going to define religion will be raised and some will want to answer the definition question in order to keep others out. The Unificationists, the Scientologists, and other sects would no doubt claim that they are religious bodies, and are therefore entitled to the protection of this kind of immunity under the convention. We are left, I think, with a conundrum. I will be interested to see whether the Human Rights Bill, as it becomes an act, manages to resolve this or not. Will it leave us in the United Kingdom better or worse off than we are at present, without legal definition?

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