This article considers the litigation in Ghai v Newcastle City Council in which the legality of open air funeral pyres under the Cremation Act 1902, and under the right to freedom of religion and belief in article 9 of the European Convention on Human Rights, was considered. Ultimately the Court of Appeal held that open air funeral pyres within a walled enclosure were not unlawful. But at first instance the Administrative Court, which had assumed that domestic law prohibited such pyres, held that such a ban would not breach article 9 since it was legitimate to prevent causing offence to the majority of the population. It is the approach of the Administrative Court to article 9 (which was not considered by the Court of Appeal) that forms the basis of the critical analysis in this article. In particular it is argued that the Administrative Court undervalued the right to freedom of religion and belief, as against the need to prevent offence to others, and adopted a stance which was overly deferential to Government and Parliament.1

This piece offers an account of the law relating to immigration and asylum, especially as it affects ministers of religion and those who give religious reasons for seeking asylum. Beside Nicholas Coulton's passionate advocacy,1 this paper must seem bloodless and even unfeeling. It is a revised version of part of a paper for the European Consortium on Church and State Research, an essentially ‘black-letter’ account of one country's national law constructed to a template that enabled comparisons to be drawn. It began with the observation that United Kingdom immigration law is of daunting complexity; only some limited aspects can be addressed here.

I first came to know asylum seekers in 2000 when working at Newcastle Cathedral. First a Rwandan joined our worship, and later an Iranian. I never asked if the Rwandan was Hutu or Tutsi since the massacres there were too complex for labelling. We knew his family were prominent French-speaking Anglicans, and that in the camps he had become separated from his wife and children. A year or so later my wife recognised his wife's name in an account by a senior Mothers' Union lady of her visit to Africa and to a refugee camp in which his wife had formed an MU branch. Eventually his wife and children were able to join him on Tyneside.

Article 9 of the European Convention on Human Rights protects manifestations of religion or conscience from interference under Article 9(1) except insofar as such interferences can be justified under Article 9(2). This analysis asks when Article 9 will protect believers who are forced to choose between religious observance and pursuit of secular ‘goods’ and offers some conclusions about how the protection of believers from forced choices compares with the protection of manifestations of religious belief. It also considers whether cases where believers are asked to choose between religious obligations and protected goods raise particular issues under 9(2). Finally, the conclusions arrived at are applied to an illustrative hypothetical example. The objective is to demonstrate the potential reach of 9(1), and to explore the 9(2) analysis specific to protected-good cases.2

Questions have arisen as to the manner of the publication on 9 November 2009 of Anglicanorum coetibus, the Apostolic Constitution Providing for Personal Ordinariates for Anglicans Entering into Full Communion with the Catholic Church. What is clear is that the views of the Pontifical Council for Promoting Christian Unity, under Cardinal Walter Kasper, were given less weight than ought to be expected and that both the Archbishop of Canterbury and the Archbishop of Westminster were informed at only a late stage. More assuring for the long term, Cardinal Kasper has stated that this provision is not a new form of ecumenism. Significantly, the Vatican statement following the meeting between the Archbishop of Canterbury and Pope Benedict XVI in Rome on 21 November reiterated ‘the shared will to continue and consolidate’ the relationship between the Roman Catholic Church and the Churches of the Anglican Communion and noted approvingly that the details of the third phase of ARCIC would be discussed at informal talks with Anglican representatives in the days following the Archbishop's visit to the Pope. Whatever else the Ordinariate may be, it is not a substitute for that ‘serious dialogue’ established by Archbishop Michael Ramsey and Pope Paul VI which has as its continued goal, despite obstacles ancient and modern, the restoration of ‘complete communion of faith and sacramental life’ between us.

In 1974, the province of Alberta began to issue drivers' licences with photographs of the licence holder but exempted persons who objected to having their photographs taken for religious reasons from the photograph requirement. At that time the Muslim population of Canada was tiny and it was an unspoken assumption that the exemption was created for the Hutterian Brethren who have long had a number of colonies throughout the Prairies. In 2003, the province made photographs mandatory for all licence holders and created a provincial facial recognition data bank for the photographs. The Wilson colony of Hutterites objected to having their photographs taken on the ground that photographs constitute an infringement of the second commandment concerning idols (Exodus 20.4) as they understand it. Without drivers' licences, the colony is unable to make off colony trips to take their produce to market, or their ill members for medical treatment, or to be volunteer firefighters in their surrounding area, that is, the absence of licensed drivers makes it much more difficult for them to sustain their largely self-sufficient agrarian communal way of life which is also a matter of belief (Acts 2.44) without the expense of hiring taxis or outside drivers on an as-needed basis. The province offered a compromise that Hutterite drivers be issued with photograph-free licences but that photographs would still be required for the data base. The colony suggested a photograph-free licence bearing the words, ‘Not to be used for identification purposes’. Neither side accepted the other's proposal and the colony initiated litigation on the ground that the freedom of religion of the Hutterites pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms (the ‘Charter’) had been infringed. The colony succeeded at trial and by a 2–1 decision in the Alberta Court of Appeal but lost in a 4–3 decision in the Supreme Court of Canada because in the view of the majority, written by McLachlin CJC, the photograph requirement was a ‘reasonable limit’ on religious freedom and ‘demonstrably justifiable in a free and democratic society’ under section 1 of the Charter.

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.

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.