The Supreme Court has chosen to change the Law and declare the Church of Scientology an officially recognised religion for the purposes of conducting marriages at their premises. The decision will inevitably have wider implications because of the fiscal consequences relating to the tax treatment of premises of religion. The Church will now also enjoy access to charitable status and protection under the law against religious discrimination.
Where this new church leads, others will follow, and it is not special pleading from an adherent of an established faith, to observe that when legal privileges and immunities are extended, they may also become diluted. Some, who may be tolerated as a small acceptable exception in restricted cases, may eventually find that an extension of a legal class moves it towards a tipping point, at which agitation begins to abolish the special status privilege or immunity altogether.
One senses that would not bother the members of the Supreme Court much.
Archbishop Cranmer has comprehensively explained and analysed the implications of the case: if readers are not yet au fait with the detail of the matter they can catch up here
His Grace illustrates Brother Ivo’s fears for the future by exploring how badly the Labour Party predicted the implications of its Equality legislation when it declared in answer to a direct question on the subject stating that hat nothing it was enacting would result in an alteration to the business rates which exempts churches. It did and it will.
This single piece of legislation has had more unintended consequences than any other and it has not finished yet.
What the supporters of the legislation did not say, or did not understand, was that by the Act which they were promoting, they were elevating the Judiciary – ultimately the Supreme Court – to become unelected co-legislators by placing in their hands a set of principles that carried latent within it the opportunity to make decisions relating to age old practices, institutions, and understandings, without having the inconvenience of ever consulting the public. What could possibly go wrong?
Law has always been interpreted by Judges, and there has been a long discourse in academic circles about the extent to which Judicial discretions might be stretched before infringing the important bulwark of British liberty, the separation of powers.
We paid lip service to that doctrine when we effectively demoted the ancient office of Lord Chancellor to become a rather dowdy Minister of Justice, and appointed a series of hang dog second raters who would never have graced the woolsack in better times. We did so because the ancient office embodied in the single person of the Lord Chancellor, a member of the Government. the Speakership of the Upper House, and the most senior of Judges. He infringed the separation doctrine so he had to go. It was not appreciated how complex that was, either.
We have since endowed the Supreme Court with the powers to legislate with few having noticed that this is in itself problematic.
In the days of clearer jurisprudence, the rules of statutory interpretation , were developed to delimit the extent to which which judges might employ their creative legislative power.
When those discretions were exercised within the primacy of the Common Law tradition, the interpretations and adjustments were very Anglo-centric, constantly referencing English traditions, customs, attitudes and concepts of fairness. Why anyone should have regarded this as problematic is not understood by Brother Ivo.
The influence of English culture, law and constitutional tradition has spread beyond its shores and even when it was initially imposed colonially, the intrinsic values of the English ways were recognised and accepted long after the Empire and Commonwealth receded. It is no accident that so many of the safest and comfortable so places in the world in which to live, fall under the “Anglo-sphere” description.
By its Scientology decision, however, the Court has stepped away from its Anglo-heritage and embraced the more European tradition.
Instead of interpreting the law from and within its Anglo-cultural context, it turned to the “Enlightenment” tradition of thinking things through from first “rational” principles.
Brother Ivo deliberately began his piece by describing the decision of the Court as a choice. It plainly was. There was nothing which compelled the Court to change the law. It could easily have re-affirmed the existing law and retained the requirements which previously needed to be met to qualify for religious status. These had been defined by Lord Denning in an earlier decision which laid down that an important feature of a religion was belief in a Supreme Being.
“Turning to the creed of the Church of Scientology, I must say that it seems to me to be more a philosophy of the existence of man or of life, rather than a religion. Religious worship means reverence or veneration of God or of a Supreme Being. I do not find any such reverence or veneration in the creed of this church. … When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God.”
Plainly our Supreme Court prioritises abstract “Equality” over culturally derived ways of doing things, however pragmatically successful most of us might judge those ways to be. It must also be said that the English culture has not proved so offensive that others have been dissuaded from coming and settling within it the better to enjoy the benefits of tolerant values found here.
There have been many fugitives from “rational” legal systems reasoned from abstract principles, but by and large, there is a paucity of evidence of outraged victims fleeing the oppressive judicial values of the Anglo-sphere.
There has always been a steady stream fleeing from the “enlightened” “rational” laws of the French and Russian revolutions and we still see modern examples of legal and political systems “reasoned” by radicals. Many victims of inhumane “reason” have sought the protection of “irrational” British cultural decency, and still they come from the sympathetic dissident to the worst religions zealot and war criminal.
Why we should be so keen to jettison the principles that might regulate such entries, in favour of “modern rationalities” that admit them seems absurd, but Brother Ivo digresses.
The Scientology case is but part of a juristic trend that seems to be advancing without much popular thought being given to it.
Do we want our Judges to legislate?
How far should we let them go?
Is it right that there should be a class of legislator who can not only delay change ( which is all our House of Lords can effectively do) but actively initiate it?
The Scientology case was fought out partly with an eye upon the fiscal consequences. His Grace highlights that this was the subtext of the dispute. Are we happy to have legislators who have no interest or accountability when they make law or enact policy change with massive fiscal implications?
When the Court attacked the Government policy of imprisoning dangerous men whom the Court would not deport, the Judges were able to only substitute its judgement for that of the elected Parliament, but also to impose the costs of a 24 hour surveillance exercise without giving a moments thought to the economies that might have to be made elsewhere.
Are we comfortable with this?
This is not of course a purely British phenomenon. In the US Supreme Court Judges have been very activist. They drove some of the Civil Rights reforms but also tortured the Constitution to declare abortion to have been in the minds of the founding fathers when they drafted it. We all know that that those founding fathers would have considered it a crime against God and humanity, but the sophisticated jurist is comfortable with “legal fictions ” of this kind.
The consequences of that decision is that America has been cursed with culture wars for over 50 years thereafter. Whatever one thinks of the issue, the British way of legislating it openly and properly. settled it quickly, whereas by taking the US route of judicial activism, much social division resulted.
This should be an awful warning to us.
Our Supreme Court judges appear wish to emulate their US counterparts and have adopted both the name and the penchant for group photographs. If they do see themselves in such a light, then surely they must accept the US corollary of submitting themselves, their records, their attitudes, their politics and and their beliefs to public confirmation sessions conducted in Parliament.
If Brother Ivo is to be subjected to laws enacted by an unelected and unaccountable coterie of judicial legislators , he wants us all to know exactly what kind of person they are and what we are letting ourselves in for before they are appointed.