Laws and religion: unravelling McFarlane v Relate Avon Limited

Article English OPEN
Sandberg, Russell (2010)

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.
  • References (39)
    39 references, page 1 of 4

    7 See M Hill and R Sandberg, 'Blasphemy and Human Rights: An English Experience in a European Context' IV (2009) Derecho y Religi´on [Law and Religion] 145-160.

    8 McFarlane v Relate Avon Limited; Application for Leave to Appeal, case number A2/2009/2733.

    9 [2009] UKEAT 0106/09/3011 (30 November 2009).

    10 Ladele v London Borough of Islington [2008] UKEAT 0453/08/RN (10 December 2008); [2009] EWCA (Civ) 1357. For a fuller discussion of this decision, see Lucy Vickers' article in this issue of the Journal, 'Religious Discrimination in the Workplace: An Emerging Hierarchy?' (2010) 12 Ecc LJ 280-303.

    11 Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, reg 3(1)(a).

    12 Laws LJ noted that, 'The applicant is a Christian who (in the words of the EAT, paragraph 4) “believes that it follows from Biblical teaching that same sex sexual activity is sinful and that he should do nothing which endorses such activity”': McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) at para 4.

    13 Para 27.

    14 [2009] EWCA (Civ) 1357.

    15 Para 52.

    16 Para 50.

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