Sir Bernard Rix, recently retired from the Court of Appeal, perceptively observes in his foreword to The Protections for Religious Rights that it is ‘essentially a new subject to English law’ (p v). Accordingly, it gives to the authors a blank canvas upon which to paint, and to reviewers a free hand to carp and criticise. What may appear systematic and comprehensive to one is disjointed and selective to another. And there are few areas of law as subjective as those which touch personal belief systems and the very core of one's being. Detachment and objectivity are at a premium, and the wisdom of multiple authorship cannot be criticised, with varying perspectives and religious heritages adding shade and nuance, balance and clarity.
Unsurprisingly for a volume where the lead author was a distinguished advocate in both the United Kingdom domestic courts and the European Court of Human Rights in Strasbourg until his departure to the High Court bench, the emphasis of the text is very much on substantive legal provisions and the practical manner in which claims of a religious nature are prosecuted and defended. This is a practitioners' book, densely written and heavily footnoted. It demonstrates an understanding of the embryonic – but now extensive – case law that is unrivalled in other texts and monographs, which tend to be more theoretical or sociological in nature.
While the enforcement of religious rights is still in its infancy in English jurisprudence, it rapidly becomes dated. Since the publication of this treatise, long in its gestation, the text has been overtaken by further flip-flopping of the United Kingdom Supreme Court on the employment status of clergy (Preston v President of Methodist Conference); by a gentle breeze suggestive of the lessening of judicial deference to matters of religious doctrine (Khaira v Shergill); and by a revisiting of the very nature of religious worship in the context of Scientology (R (Hodkin) v Registrar General). There has been primary legislation too: gay marriage and the ‘quadruple lock’ (designed to secure conscientious objection for the clergy) is centre-stage. The novelty of a civil partnership, which was in its primacy when the text was written, is now largely consigned to history. At best, therefore, The Protections for Religious Rights can only be a snapshot of a rapidly changing kaleidoscope. But in capturing a moment in time within an unusually lively jurisprudential continuum, the volume is as authoritative, thorough and measured as one could wish for. In this the authors are to be warmly congratulated.
The work starts with a succinct and well-judged preamble, leading into a short history of English law and religious rights from mediaeval England to the twenty-first century. This has many resonances with Professor Julian Rivers' magisterial opus The Law of Organised Religions, published by Oxford University Press in 2010: not merely a stable-mate but a thoroughbred of equal quality. Thereafter comes perhaps the least successful section, Part I, dealing with international standards and protections. More than 120 pages are given over to trans-national treaty obligations fostered by the United Nations and (perhaps of greater relevance to British law and practice) the rights and remedies under the European Convention on Human Rights and the law of the European Union. Thereafter, some 150 pages are devoted to comparative perspectives from nine foreign jurisdictions. Without doubt, regard should be had to how religious rights are protected beyond British shores. However, notwithstanding the quality of these global vignettes, they are individually too brief to be authoritative but collectively of such a length as to dislocate and unbalance the narrative. In the second edition of this work – which I trust is already in preparation – it would be a blessing for end users if this lengthy section were to be omitted, but for its valuable content to be dispersed elsewhere in the volume, giving broader international perspectives where merited on a thematic basis. Were this fine scholarship to be distilled and synthesised rather than segregated and compartmentalised, a good book would become a great one.
For this reviewer, at least, The Protections for Religious Rights truly comes into its own at the halfway point, as it enters Part II, on domestic protections. The use of the plural in both the title and the heading is significant, for there is no single protection. The safeguarding of religious rights is not uniform or systematic. It depends on a number of regimes which do not always sit easily one with another. This volume takes the two major mechanisms in turn: the Human Rights Act 1998 (Chapter 5), followed by various anti-discrimination provisions now found in the Equality Act 2010 (Chapter 6). The detailed analysis of these parallel regimes surpasses any other treatment currently on the market. It condescends to specifics and does not shy from technicalities, while at the same time never losing sight of the broad principles involved and their intersection with competing rights and interests. It is rare to find academic writing which enriches legal scholarship while simultaneously remaining of practical use to the growing cadre of professionals who are called upon to advise clients and to litigate particular cases where conscience and law seem to collide.
The authors then turn their attention to specific themes. A slightly awkward chapter entitled ‘Services and public functions, premises, associations’ (Chapter 7) brings the reader to ‘Religion and employment’ (Chapter 8), ‘Religion and education’ (Chapter 9), ‘Religious expression and toleration’ (Chapter 10), ‘Religion and the family’ (Chapter 11) and finally ‘Protections for religious rights in other areas’, where some highly topical matters are judiciously discussed but in a rather piecemeal fashion. The treatment of church courts is surprisingly cursory, considering the prominence of the Beth Din and Sharia Councils, and the charitable status of religious organisations merits a more expansive commentary. But in all of these substantive areas, the consideration of the law and its application by judges at first instance and in the appellate courts is exemplary. Much of this material is not readily accessible to the practitioner and having it brought together into a coherent narrative, rich in examples and long on analysis, is the crowning glory of the work. Chapters 8 to 11 are lucid monographs in their own right. When a second edition is written – as inevitably it must be – the team of authors would do well to capitalise on their skills and experience in expanding these chapters, facilitated by a corresponding reduction in the discursive global sections.
Those who practise in the vibrant and controversial field of religious liberty have long recognised a gap in the market for a comprehensive and authoritative study of this ‘new subject’ in English law which serves to give protection to the religious rights of its citizens against a rising tide of perceived secularism. No longer.