Religion and the law once more: recognising Druidry

Written for Halsbury's Law Exchange and published here

On 2 October the BBC reported that Druidry is to be recognised as an official religion by the Charities’ Commission. This status has legal implications, in particular for tax purposes. Not all have been happy with the news. In the Daily Mail the conservative commentator Melanie Phillips wrote:

Elevating them to the same status as Christianity is but the latest example of how the bedrock creed of this country is being undermined. More than that, it is an attack upon the very concept of religion itself.

Whether one agrees or not, the report raises once more the issue of religion in public life, unquestionably one of the more intractable problems destined to remain a feature of public debate in this country.

Previously, of course, Christianity ruled the roost as the state religion, as Ms Phillips infers, although as a Jew she might be more cautious about wishing for a return to the past. Mediaeval Christian England severely oppressed Jews before expelling them altogether in 1290 under Edward I by an edict not overturned until 1656. The right to naturalise was not given to Jews until the early 19th century and they were not eligible to sit in the House of Commons until 1859. Ms Phillips has also previously written that the Judeo-Christian theology was responsible for modern ethics and the methods of scientific inquiry, although both claims might have come as a surprise to the ancient Greeks.

Back to the present day, where despite the continuing presence of an established church, the state has attempted to be inclusive of all religions and to recognise them at law accordingly. Two problems exist with that approach: first, how to define “religion”, and secondly, how to reconcile beliefs incompatible with each other and, more importantly, incompatible with the law.

Manifestations of those problems have formed many a headline story, from the dramatic in the form of the Satanic Verses controversy of the late 1980s or the more recent Danish cartoon furore, to the alleged wishes of a schoolgirl to wear a particular item of clothing, employees wishing to be exempt from certain duties, and business owners wishing to exclude their services from certain sections of the public.

Liberal philosophers have long had the following answer: there is no way of the state satisfactorily defining a “religion” (witness the somewhat tortuous efforts of Burton J to do so in Nicholson v Grainger plc [2009] All ER (D) 59 (Nov)). Instead the state should adopt an entirely neutral stance towards religion, which involves permitting any form of belief or religion, but only to the extent that each is compatible with the law of the land. Thus there should be no religious exemptions to employment contracts (unless freely agreed between the contracting parties) or school uniforms (unless the school itself decides to permit it as part of its own policy on uniforms) or taxation. If a religion is undertaking charitable activities then those activities themselves should qualify for tax exemption, not the religious aspect. Nor should religious (or, equally, anti-religious) sensitivities be permitted to override freedom of speech, as in the Rushdie affair or any number of less extreme examples.

Such an approach should not worry any religious believer; quite the opposite. The United States has a constitutional separation of church and state, as well as freedom of speech, and yet has a higher level of religious observance than the United Kingdom. By contrast, certain theocratic states elsewhere in the world protect only one religion, and not much in the way of freedom of speech or other human rights either.