The proximity of two recent judgements apparently challenging the right of Christians to practise their faith has led to much media interest including the headline ‘Christianity on the Rack’. One of the two concerned public prayers at council meetings.
Responses have included ‘a plague on both your houses’ from those who dislike the fervour of the National Secular Society as much as that of the Christian Institute; an attack on ‘militant secularism’; and a narrow analysis that the scope of the judgements was not the broad brush attack on faith that it seems.
Now, I approach these rulings as a lawyer who believes in human rights; but from that perspective the growth of a secular society is neither inevitable, nor even a preferred direction of travel.
My unusual, but hardly unique starting point, is that Christianity itself lost its way, somewhat, when it was appropriated as a state religion under Constantine; and that requiring it to sink or swim without state support in competition with every other faith or belief, is fine. I’ve no truck, then, with the ‘Christian country, Christian heritage’ kinds of arguments. If someone is intolerant enough to insist on asking a judge the question, I have no quibble with the answer the judge gave.
However, there are two dangers that appear to have been widely missed. Both emerge from the debate about the boundary between public and private life.
The first danger is the growing perception that the manifestation of faith should be a matter for private and not public life. That is not our human right. After all, the scope of Article 9 could hardly be clearer:
“Everyone has the right to freedom of thought, conscience and religion; this right includes 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.”
Our liberal right is to manifest faith, “alone or in community… in public or in private“. It may well be that faith should not be state-sponsored. But it should be allowed to be a part of public life, not a purely personal, still less a secret activity.
The second danger, again accepting that faith should not be state-sponsored, is that if we are to secularise state-sponsored public life, we need a clear understanding of the boundary between public and private life; and we need enough of life to be on the private side of that boundary for faith to be able to thrive.
Three growth areas in state activity concern me in this regard: regulation, privatisation, and criminalisation. As a social worker, I draw my examples from social work, surely the epitome of the interface between state-sponsored public life and private life.
By regulation, I refer to the State’s involvement in setting and enforcing standards. Checking that restaurants are clean seems innocuous enough. Requiring us to register if we look after each other’s children is more problematic. Oh, I understand the pubic interest in the welfare of children readily enough, the problematic is the boundary between public and private spheres of activity. Something that was once a purely private activity becomes the State’s concern.
Consider this for a moment. The threshold for compulsory intervention in family life is significant harm; a threshold that serves as a reminder that in the absence of significant harm the State may seek to persuade, but cannot coerce it’s views on how to bring up a child. But if I want to bring up someone else’s child, I need the State’s approval. Despite the fact that we know children would be better off in families than in corporate care, we check those new families not against the ‘significant harm’ threshold but against the State’s best practice standards. Further developments mean we are under pressure to treat kinship and non-kinship arrangements comparably. Again, I understand the whys and wherefores, just observe that kinship care, surely once the epitome of the private sphere, has become the State’s concern.
Paragraph 5.8 of the GSCC’s Code of Practice – a standard enforceable against social workers under the Care Standards Act, and one frequently cited in misconduct cases, provides a further example. An Act of Parliament makes provision for a Code which in turn allows an organ of the State to monitor and censure the private lives of social workers.
As Ken McLaughlin explains (British Journal of Social Work  volume 40(1) pp311-327),
“There is certainly a similarity to religion in the way that the GSCC has taken to censuring our sex, drink and drug habits… In some respects, it could be argued that the GSCC is replacing the priest or imam as the contemporary arbiter of morally ‘correct’ behaviour.”
Now, why should privatisation represent an expansion of the State’s area of influence, rather than a contraction? The answer is that what it represents is a blurring of the State’s sphere of influence. Certain activities, health or social care, for example, were once clearly in the public domain, or clearly in the private domain. But when the private domain contracts with the public domain, and the same commercial providers supply both, the boundaries are blurred.
Nowhere is this better illustrated than by the fallout from the House of Lords’ decision in YL v Birmingham City Council & Ors  UKHL 27 (20 June 2007). An 83 year old woman with dementia was unable to assert her human rights against her care provider because she was placed in a privatised care setting, the provider being held not to be performing a ‘public function’. In the fallout from that decision, there has been a call to expand the definition of ‘public function’ to cover privatised services.
There should surely be nothing objectionable in that, if I believe, as I do, in human rights? Well, it does seem to me that YL’s human rights ought to have arisen because of her humanity, not because of some technical ruling about the scope of the State. And if we are to expand the scope of what is a ‘public function’ it does seem we are going to need to tread with care lest we also believe that means ‘secular’.
Two characteristics of the criminal law may be said to be that it represents society’s minimum standards of behaviour, and that it is the State that polices them. So a surge in new criminal offences (approximately one new offence a day under the previous administration) also corresponds with a growth in the scope of activity that the State polices.
Now, to be fair, there has been public support, media support, democratic support, for the growth of the state. Indeed, it seems that nothing can go wrong in the private sphere without a clamour going up for the state to intervene. But the State needs to resist. To know its place. To behave in a way that does not tyrannise the minority. To respect human rights.
Both religion and the State have been capable of great harm in history, most frequently when they have been intertwined. A secular state is no less capable than a religious one of excesses, intolerance, even atrocity. But both religion and the State also have the potential for great good; and I would rather see them operating as checks and balances on each other, than either one surging forward to overwhelm the other.
Allan Norman is a registered social worker and a solicitor at Celtic Knot.