MY GREAT-UNCLE, Harold Hill, was appointed Governor of Oxford Prison in 1926. In a memoir, his wife, Dora, recollects their son (later a circuit judge) cycling to kindergarten in north Oxford through a large crowd that had gathered for the execution of a prisoner.
This family story gives evidence of the extent to which the criminal law has evolved in a little over a generation. The idea of regular executions in Oxford, the last of which occurred as recently as 1952, is now unthinkable. As times change, so the law changes — sometimes leading public opinion, and sometimes lagging shamefully behind.
In recent years, legal recognition has been given to gender reassignment, to the formation of civil partnerships and entering same-sex marriages, and to the dignified removal of life support for those in a permanent vegetative state. Last month, the High Court acceded to a request to allow the cryogenic freezing of a body, pending advances in medical science. The law, as applied by judges, is not fixed and immutable, but constantly adapting to societal changes in the service of the wider community.
Moses led his people to within sight of the Promised Land, but never entered it. Today, we tend to associate that territory with unrest and division. In the time of the Old Testament, it represented fulfilment, security, and future prosperity.
God instructed Joshua: “Keep this book of the law always on your lips. . . . Then you will be prosperous and successful” (Joshua 1.8). The need for compliance with the Mosaic law was strict and uncompromising. It pervaded all aspects of human existence. And yet it was rooted in the context of a more homogeneous society, with a shared faith, for which religious discipline was part and parcel of common life.
The multicultural and doctrinally plural world in which we now live could not be more different. Dostoevsky famously remarked: “The degree of civilisation in a society can be judged by entering its prisons.” Similarly, the maturity of civil society in a culturally diverse world can be gauged by the way it treats its minorities, and especially its religious minorities.
Writing to the people of Corinth, St Paul observed: “‘I have the right to do anything,’ you say — but not everything is beneficial.” His exhortation to them is clear and uncompromising: “No one should seek their own good, but the good of others” (1 Corinthians 10.23-25). He urged a softening of the Mosaic law, and the fostering of pragmatic and sensible exceptions: for example, in dietary law.
In post-war Britain, expansive accommodations contribute towards the richness of multiculturalism. In showing toleration, however, one must distinguish between genuine harm to religious sensibilities, and synthetic offence manufactured to promote a political end.
THE genius of English jurisprudence is its fusion of common law and equity, justice and mercy, commandment and grace. The challenge for English judges lies in its application on a case-by-case basis to infinitely variable sets of circumstances.
One of the unintended consequences of the passing of the Equality Act 2000 has been to fetter judicial discretion to do substantive justice in individual cases, by prescribing an overly formulaic approach, which inhibits judicial discretion. In a lecture in 2014, the Deputy President of the Supreme Court, Lady Hale, concluded that English law had not yet found a reasonable accommodation of all the various competing interests.
The decision in the Ashers Bakery appeal was a case in point (News, 28 October). The Northern Ireland Court of Appeal was called on to address whether Christians should be penalised for acting in accordance with their conscience by refusing to decorate a cake with a slogan arguing for a change in the law to permit same-sex marriage.
The recognition of a spiritual sphere, howsoever defined, has implications for civic society, for which the artificiality of the Equality Act proved to be too blunt an instrument to provide a sensible solution. Even the veteran gay-rights campaigner Peter Tatchell expressed unease with the outcome, and with the failure of the law to respect the conscience of the Christian bakers.
WHILE the Supreme Court has been hearing argument on the Brexit appeal, there have been some straws in the wind elsewhere which are suggestive of an outbreak of common sense.
The Equality and Human Rights Commission published this month its report Religion or Belief: Is it working?, with helpful guidance on the law (News, 9 December). It dispels some of the myths propagated in the media, and advocates the creation of sensitive policies in the workplace whereby religion can be respected and flourish.
It does not recommend a change in the law to create a free-standing duty of reasonable accommodation, for which the pressure group ResPublica had contended a few days before, in its report Beyond Belief: Defending religious liberty through the British Bill of Rights (News, 2 December). This mood of agitation for change, whether by the “soft-law” approach of the Commission, or something at a constitutional level, cannot be ignored.
Today, we consider the death penalty emblematic of a less humane age. Perhaps future generations will regard us in the same light, and look back in disbelief — for example, at the way in which the institutional Church struggled to embrace fully the humanity and love of Christ as reflected in committed same-sex relationships.
The past is indeed a foreign country, where things are done differently, and often incomprehensibly. The law, like the gospel, must be articulated anew in every generation: vital and vigorous, engaged and engaging. It is a process of constant recalibration.
This is a revised version of the Annual Court Sermon, delivered at Christ Church Cathedral, Oxford, in October.
The Worshipful Mark Hill QC is Honorary Professor at the Centre for Law and Religion at Cardiff University, and the Diocesan Chancellor of Chichester and Leeds, and in Europe.