Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-25T02:13:52.390Z Has data issue: false hasContentIssue false
  • English
  • Français

WITCHES, ODIN, AND THE ENGLISH STATE: THE LEGAL RECEPTION OF A COUNTER-CULTURAL MINORITY RELIGIOUS MOVEMENT

Published online by Cambridge University Press:  28 January 2018

G. J. Wheeler
G. J. Wheeler*
Affiliation:
Solicitor of the Senior Courts of England and Wales
Get access Rights & Permissions [Opens in a new window]

Abstract

This article looks at the ways in which the legal system of a modern European jurisdiction has engaged with a counter-cultural minority religious movement. The jurisdiction in question is England and Wales, and the religious movement is revived modern Paganism. The article seeks to cast light on the question of what a post-Christian secular state does in practice when its commitment to pluralistic values encounters a group whose self-understanding challenges the norms of both Christianity and secularity. In more general terms, it allows us to look at how the law of England and Wales has attempted to move beyond its historic confessional Protestant premises; and how this attempt has not been without its anomalies and shortcomings.

Keywords

Englandpaganismnew religious movementsminority religionshuman rights
Type
Research Article
Information
Journal of Law and Religion , Volume 32 , Issue 3 , November 2017 , pp. 449 - 469
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2018 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The major steps along this path were the Sacramental Test Act 1828, 9 Geo. IV, c. 17; the Roman Catholic Relief Act 1829, 10 Geo. IV, c. 7; the Jewish Municipal Relief Act 1845, 8 & 9 Vict. c. 52; the Jews Relief Act 1858, 21 & 22 Vict. c. 49; and the Oaths Act 1888, 51 & 52 Vict. c. 46.

2 The leading cases were R v. Ramsay and Foote (1883) 15 Cox CC 231 (Eng.) and Bowman v. Secular Society Ltd [1917] AC 406 (Eng.).

3 Starting with Mr. Justice Simon Brown in R (Wachmann) v. Chief Rabbi [1993] 2 All ER 249 at 255 (Eng.), as subsequently endorsed at Supreme Court level by Lord Hope in R (E) v. Governing Body of JFS [2009] UKSC 15 [157] (Eng.).

4 See esp. McFarlane v. Relate Avon [2010] EWCA (Civ) 880 (Eng.); R (Johns) v. Derby City Council [2011] EWHC 375 (Admin); Hall v. Bull [2012] EWCA (Civ) 83 (Eng.).

5 See esp. Manoussakis v. Greece [1996] ECHR 41 and Şahin v. Turkey, App. No. 44774/98, 44 Eur. H.R. Rep. 99 (2005).

6 Rosenfeld, Michael, Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account (Cambridge: Cambridge University Press, 2011), 156CrossRefGoogle Scholar.

7 The status of the Church of England has well been described as an “anomaly.” See Knights, Samantha, Freedom of Religion, Minorities, and the Law (Oxford: Oxford University Press, 2007), 1.42Google Scholar; see also Knights, Samantha, “Approaches to Diversity in the Domestic Courts: Article 9 of the European Convention on Human Rights,” in Legal Practice and Cultural Diversity, ed. Grillo, Ralph et al. (Farnham: Ashgate, 2009), 283–98, at 288Google Scholar. On the present legal relationship between the church and the English state, see further Hill, Mark, Ecclesiastical Law, 3rd ed. (Oxford: Oxford University Press, 2007), chap. 1Google Scholar.

8 R (Williamson and Ors) v. Sec'y of State for Educ. and Employ [2005] UKHL 15 [15].

9 Shergill v. Khaira [2014] UKSC 33 [45]. See also the earlier case of Gilmour v. Coates [1949] AC 426.

10 Phillips v. Monson, March 20, 2014, https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/thomas-phillips-v-thomas-monson.pdf. Judge Howard Riddle stated, “To convict, a jury would need to be sure that the religious teachings of the Mormon Church are untrue or misleading. … No judge in a secular court in England and Wales would allow that issue to be put to a jury.”

11 Moon, Gay and Allen, Robin, “Substantive Rights and Equal Treatment in Respect of Religion and Belief: Towards a Better Understanding of the Rights, and their Implications,” European Human Rights Law Review, no. 6 (2000): 580–602, at 585Google Scholar.

12 Woodhead, Linda, introduction to “Judaism, Sikhism, Islam, Hinduism and Buddhism: Post-war Settlements,” by Bluck, Robert et al. , in Religion and Change in Modern Britain, ed. Woodhead, Linda and Catto, Rebecca (Abingdon: Routledge, 2012), 86–88, at 86Google Scholar.

13 The full text of Article 9 reads as follows:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

European Convention on Human Rights, art, 9, Nov. 4, 1950, E.T.S. no. 5.

14 Human Rights Act 1998, §§ 3, 6. The Act appears to give a degree of emphasis to the Article 9 right. Section 13(1) provides, “If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.” Yet this provision has proven relatively insignificant in practice. See further McCrudden, Christopher, “Religion, Human Rights, Equality and the Public Sphere,” Ecclesiastical Law Journal 13, no. 1 (2011): 36–37CrossRefGoogle Scholar; Dingemans, James et al. , The Protections for Religious Rights: Law and Practice (Oxford: Oxford University Press, 2013), 1.49Google Scholar.

15 The first relevant English legislation in this area was the Employment Equality (Religion or Belief) Regulations 2003. These Regulations were introduced pursuant to a European Union Directive (2000/78/EC). They were superseded by the Equality Act 2006, which was in turn replaced by the Equality Act 2010.

16 The relevant provisions are now found in the Charities Act 2011, § 2(a). See also §§ 2–4 on the criteria for charitable status generally.

17 See Part IIIA of the Public Order Act 1986.

18 See Jeremy, Anthony, “Practical Implications of the Enactment of the Racial and Religious Hatred Act 2006,” Ecclesiastical Law Journal 9, no. 2 (2007): 187–201, at 200CrossRefGoogle Scholar. See also Sandberg, Russell, Law and Religion (Cambridge: Cambridge University Press, 2011), 144CrossRefGoogle Scholar.

19 See generally Hutton, Ronald, Pagan Britain (New Haven: Yale University Press, 2013)Google Scholar.

20 Useful histories of the movement include Hutton, Ronald, The Triumph of the Moon (Oxford: Oxford University Press, 1999)CrossRefGoogle Scholar, the standard work on the subject; Davis, Philip G., Goddess Unmasked (Dallas: Spence, 1998)Google Scholar, a factual but adversarial treatment; and Clifton, Chas S., Her Hidden Children (Lanham: Altamira, 2006)Google Scholar, from an American perspective.

21 Bowman, Marion, “Nature, the Natural and Pagan Identity,” in “Pagan Identities,” special issue, Diskus, no. 6 (2000)Google Scholar, http://jbasr.com/basr/diskus/diskus1-6/bowman6.txt.

22 For more information on Paganism generally, see Clifton, Chas S. and Harvey, Graham, The Paganism Reader (New York: Routledge, 2004)Google Scholar; York, Michael, Pagan Theology (New York: New York University Press, 2005)Google Scholar; Adler, Margot, Drawing Down the Moon, 4th ed. (New York: Penguin, 2006)Google Scholar; Davy, Barbara J., Introduction to Pagan Studies (Lanham: Altamira, 2007)Google Scholar; and Kraemer, Christine Hoff, Seeking the Mystery (Englewood: Patheos, 2012)Google Scholar.

23 Hutton, Triumph of the Moon, 400–1. Note that this figure included Scotland, as well as England and Wales.

24 The number that one comes up with also depends on which responses one counts under the “Pagan” umbrella. See generally David Voas, “Census 2011—Any Other Religion?,” British Religion in Numbers, December 16, 2012, http://www.brin.ac.uk/2012/census-2011-any-other-religion.

25 Weller, Paul et al. , Religion or Belief, Discrimination and Equality: Britain in Global Contexts (London: Bloomsbury, 2013), 127, 208Google Scholar. The book contains useful quantitative information on discrimination against different religious groups, although the utility of the information is limited by the fact that the figures for Paganism have been rolled together with those for other new religious movements. See also Weller, Paul et al. , Religion and Belief Discrimination and Equality in England and Wales: A Decade of Continuity and Change, University of Derby, June 2013Google Scholar, http://www.fbrn.org.uk/sites/default/files/finalises_religion_and_belief_policy_brief_for_website_0.pdf.

26 Weller, Paul, Feldman, Alice, and Purdam, Kingsley, Religious Discrimination in England and Wales (Home Office Research Study 220, February 2001)Google Scholar, http://www.religionlaw.co.uk/reportad.pdf.

27 See, for example, Nurse v. Yerworth (1674) 36 ER 993; Nightingale v. Bridges (1689) 89 ER 496; Of the Sufficiency and Disability of a Witness (1744) 22 ER 337; Swann v. Broome (1764) 96 ER 305.

28 See, for example, Freeman v. Fairlie (1828) 18 ER 117; Williams v. Bryant (1839) 151 ER 189; Miller v. Salomons (1852) 155 ER 1036.

29 Omychund v. Barker (1745) 26 ER 15; Freeman v. Fairlie (1828) 18 ER 117; but see Miller v. Salomons (1852) 155 ER 1036.

30 Bethell v. Hildyard (1888) LR 38 ChD 220.

31 Yearbook 12 H 8, fol. 4, as cited in Calvin's Case (1608) 77 ER 377; East India Company v. Sands (1695) 89 ER 988; Sir William Hawkins, Pleas of the Crown, 1.126; Sir William Blackstone, Commentaries on the Laws of England, 4.18.2.

32 Omychund v. Barker (1745) 26 ER 15.

33 For cases referring to Pagans with approval, see Nurse v. Yerworth (1674) 36 ER 993; Hill v. Good (1674) 89 ER 111. For cases referring to Pagans neutrally, see Of the Sufficiency and Disability of a Witness (1744) 22 ER 337; R v. Millis (1844) 8 ER 844. For cases referring to Pagans with disapproval, see Swann v. Broome (1764) 96 ER 305; Attorney General, at the Relation of the University of Cambridge v. Lady Downing (1767) 97 ER 1.

34 Clifton v. Ridsdale (1875–76) LR 1 PD 316.

35 See, for example, In re St Lawrence, Pittington (1879–80) LR 5 PD 131; Vicar and Churchwardens of Great Bardfield v. All Having Interest [1897] P 185; Markham v. Shirebrook Overseers [1906] P 239; In re St Peter, St Helier, Morden [1951] P 303; In re St Mary the Virgin, West Moors [1963] P 390; In re St Augustine's, Brinksway [1963] P 364; In re Christ Church, Waltham Cross [2002] Fam 51.

36 For a historical overview of the legal position in this area, see Harris, Caroline, “Witchcraft: From Crime to Civil Liberty,” Law and Justice 167, no. 1 (2011): 55–68Google Scholar.

37 Attorney-General v. Trustees of the British Museum [1903] 2 Ch 598 at 611.

38 R v. Price (1884) 12 QBD 247 at 249.

39 Ibid., 247, 255.

40 Attorney-General v. Reynolds [1911] 2 KB 888 at 908.

41 Hoskins-Abrahall v. Paignton Urban District Council [1929] 1 Ch 375 at 381.

42 See In re St Mary the Virgin Churchyard, Burghfield [2012] PTSR 593.

43 Linda Woodhead and Rebecca Catto, Religion or Belief”: Identifying Issues and Priorities, Equality and Human Rights Commission Research Report 48, 2009, https://www.equalityhumanrights.com/en/publication-download/research-report-48-religion-or-belief-identifying-issues-and-priorities; Sandberg, Law and Religion, 46.

44 Sullivan, Winnifred F., The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005), 10Google Scholar.

45 Edge, Peter W., Legal Responses to Religious Difference (The Hague: Kluwer Law International, 2002), 7Google Scholar.

46 Heelas, Paul, “The Spiritual Revolution: From ‘Religion’ to ‘Spirituality’,” in Religions in the Modern World, ed. Woodhead, Linda et al. (Abingdon: Taylor & Francis, 2005), 412–35, at 413–14Google Scholar.

47 Equality Act 2010, § 10(2). On the evolving usage of these terms in the law, see further Sandberg, Law and Religion, 53–56; Dingemans et al., The Protections for Religious Rights, 6.16–19; Hill, Mark, Sandberg, Russell, and Doe, Norman, Religion and Law in the United Kingdom, 2nd ed. (Alphen aan den Rijn: Wolters Kluwer, 2011), 142–44Google Scholar.

48 In R (Williamson) v. Sec'y of State for Educ. and Employ [2005] UKHL 15, the judges referred to Syndicat Northcrest v. Amselem [2004] 241 DLR (4th) 1 (Can.). and Employment Division v. Smith, 494 U.S. 872 (1990). In R (Hodkin) v. Registrar General of Births, Deaths and Marriages [2013] UKSC 77, Lord Toulson discussed the cases of Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) and Church of the New Faith v. Comr of Pay-Roll Tax (Victoria) (1983) 57 CLR 785 (Austl.).

49 See R (Williamson) v. Sec'y of State for Educ. and Employ [2005] UKHL 15 [22].

50 Campbell v. United Kingdom [1982] ECHR 7511/76 at 36. As it happens, Campbell did not relate to either Article 9 or Article 14 of the European Convention on Human Rights. It turned on Article 2 of the First Protocol to the convention, which deals with educational rights.

51 R (Williamson) v. Sec'y of State for Educ. and Employ [2005] UKHL 15, at 23.

52 See Nicholson v. Grainger plc [2010] 2 All ER 253; Greater Manchester Police Authority v. Power [2009] EAT 0434/09/DA.

53 See the speech of Paul Goggins MP in Parliamentary Debates (Hansard), House of Commons, December 6, 2005, col. 145.

54 For differing approaches, see Knights, Freedom of Religion, Minorities and the Law, 5.09; Sandberg, Law and Religion, 56, 103; Napier, Brian et al. , Harvey on Industrial Relations and Employment Law (London: LexisNexis, 1991)Google Scholar, L.207–8. The judicial authority consists of a minority speech by Lord Walker in R (Williamson) v. Sec'y of State for Educ. and Employ [2005] UKHL 15, on which see further Dingemans et al., The Protections for Religious Rights, 6.28.

55 R v. Registrar General, ex parte Segerdal [1970] 2 QB 697 at 707.

56 R (Hodkin) v. Registrar General of Births, Deaths and Marriages [2013] UKSC 77, at 57. The Australian case was Church of the New Faith v. Comm'r of Pay-Roll Tax (Victoria) (1983) 57 CLR 785 (Austl.).

57 Bradney, Anthony, Religions, Rights and Laws (Leicester: Leicester University Press, 1993), 131Google Scholar.

58 Newark, Francis H., “Public Benefit and Religious Trusts,” Law Quarterly Review, no. 62 (1946): 234–47, at 235Google Scholar.

59 Bowman v. Secular Society Ltd [1917] AC 406 at 449, per Lord Parker.

60 Barralet v. Attorney General [1980] 3 All ER 918 at 924.

61 Charity Commission, The Advancement of Religion for the Public Benefit, December 2008, amended December 2011, 23, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/358531/advancement-of-religion-for-the-public-benefit.pdf). See also Analysis of the Law Underpinning the Advancement of Religion for the Public Benefit, December 2008, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/358534/lawrel1208.pdf; and, most recently, Charity Commission, Charitable Purposes, September 16, 2013, https://www.gov.uk/government/publications/charitable-purposes/charitable-purposes.

62 See Thornton v. Howe (1862) 31 Beavan 14 and Re Watson [1973] 1 WLR 1472. For a critique of this test, see Bradney, Religions, Rights and Laws, 121–24.

63 Slotte, Pamela, “International Law and Freedom of Religion and Belief: Origins, Presuppositions and Structure of the Protection Framework,” in Routledge Handbook of Law and Religion, ed. Ferrari, Silvio (Abingdon: Routledge, 2015), 103–17, at 106Google Scholar.

64 X v. UK (1977) 11 DR 55 at 56.

65 Evans, Carolyn, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001), 58CrossRefGoogle Scholar.

66 Taylor, Paul M., Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2006), 208Google Scholar.

67 Ibid.

68 R (Williamson) v. Sec'y of State for Educ. and Employ [2005] UKHL 15 [57].

69 Spurrier, Martha and Cooper, Jonathan, Halsbury's Laws of England, 5th ed., vol. 88A, Rights and Freedoms (London: LexisNexis, 2013), para. 372Google Scholar; Addison, Neil, Religious Discrimination and Hatred Law (London: Routledge-Cavendish, 2007), 8Google Scholar. Interestingly, Addison uses quotation marks when describing Wicca as a “religion.”

70 On this acrimonious dispute, see generally English, Penny, “Disputing Stonehenge: Law and Access to a National Symbol,” Entertainment Law 1, no. 2 (2002): 1–22CrossRefGoogle Scholar; Edge, Legal Responses to Religious Difference, 370–77; and Rivers, Julian, The Law of Organized Religions (Oxford: Oxford University Press, 2010), 202–4CrossRefGoogle Scholar.

71 Chappell v. UK (1988) 10 EHRR 503.

72 Pendragon v. UK (1998) HUDOC 19 October (ECHR).

73 On the engagement of English Paganism with the Charity Commission, see Michael York, “Paganism and the British Charity Commission: A Question of Restricting Boundaries,” (paper presented at the Society for the Scientific Study of Religion Annual Meeting, San Diego, CA, November 7–9, 1997), http://www.michaelyork.co.uk/Domus/CV/confpapers/cp-40.html; Michael York, “Religion and Transnationalism: Challenges of the 21st Century,” (paper presented at Society for the Scientific Study of Religion Annual Meeting, Houston, TX, October 18–22, 2000), http://www.michaelyork.co.uk/Domus/CV/confpapers/cp-27.html; Edge, Legal Responses to Religious Difference, esp. 358–61; Owen, Suzanne and Teemu, Taira, “The Category of ‘Religion’ in Public Classification: Charity Registration of the Druid Network in England and Wales,” in Religion as a Category of Governance and Sovereignty, ed. Stack, Trevor, Goldenberg, Naomi R., and Fitzgerald, Timothy (Leiden: Brill, 2015), 90–114CrossRefGoogle Scholar; Suzanne Owen, “Defining Pagan Religions through Charity Law,” (paper presented at the American Academy of Religion Annual Meeting, Atlanta, GA, November 21–24, 2015), https://www.academia.edu/20212005/Defining_Pagan_Religions_through_Charity_Law_conference_paper_?auto=download.

74 York, “Religion and Transnationalism.”

75 Ibid.

76 Ibid.

77 Edge, Peter W., “The Legal Challenges of Paganisms and Other Diffuse Faiths,” Journal of Civil Liberties 1, no. 3 (1996): 216–29Google Scholar.

78 Charity Commission for England and Wales, Application for Registration of the Druid Network, September 21, 2010, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/324236/druiddec.pdf.

79 Melanie Philips, “Druids as an Official Religion? Stones of Praise Here We Come,” Daily Mail, October 4, 2010, http://www.dailymail.co.uk/debate/article-1317490/Druids-official-religion-Stones-Praise-come.html.

80 Graham Harvey and Giselle Vincett, “Alternative Spiritualities,” in Woodhead and Catto, Religion and Change in Modern Britain, 156–72, at 157 (emphasis original).

81 Owen, “Defining Pagan Religions through Charity Law,” 5.

82 Holden v. Royal Mail Group PLC (2006) ET/2403904/05 (Employment Tribunal).

83 Ibid., 17.

84 Ibid., 15.

85 R (Spiropoulos) v. Brighton and Hove City Council [2007] EWHC 342 (Admin), 8.

86 Grant v. Ministry of Justice [2011] EWHC 3379 (QB).

87 R (Pendragon) v. Ministry of Justice [2013] EWHC 2586 (Admin).

88 Holland v. Angel Supermarket Ltd ET/3301005/13 (Employment Tribunal).

89 Coulson v. Wilby [2014] EWHC 3404 (QB).

90 Naeem v. Secretary of State for Justice [2015] EWCA (Civ) 1264.

91 Judicial College, Equal Treatment Bench Book (2013), https://www.judiciary.gov.uk/wp-content/uploads/2013/11/equal-treatment-bench-book-2013-with-2015-amendment.pdf.

92 Mike Stygal, personal communication (August 2016). In the English system, “magistrates” are lay judges who sit in Magistrates’ Courts, local first-tier courts of mostly criminal jurisdiction.

93 Ibid.

94 ACAS [Advisory, Conciliation and Arbitration Service], Religion or Belief and the Workplace (March 2014), 31, http://www.acas.org.uk/media/pdf/d/n/Religion-or-Belief-and-the_workplace-guide.pdf. As a minor point of fact, “Astaru” is properly spelled “Ásatrú.” It is a form of revived Nordic religion.

95 Napier, Harvey on Industrial Relations, L.210.