Religion, law and the constitution

Balancing beliefs in Britain

How would you describe your identity and beliefs in relation to religion?

I am a member of the Church of England. I was born into it and consequently I really never considered not being in it, unlike my children, who were christened, but who are not particularly religious. I don’t talk about it a great deal. I go to church, not every Sunday… I go to the services I like. From a very early age I was part of this tradition. When I was a child because I had three elder brothers and the men in the family took it was a woman’s thing to go to church. So, I went with my mother.

Is GB an equal and tolerant society, especially in relation to religion?

We are certainly tolerant. I think from a national perspective, for which I mean the Government of the day and it doesn’t matter what Government, they’d see religion and belief in the UK as a matter in which everyone is equal. I think that in local communities there is a great degree of distrust and ignorance, so they would view other communities they don’t understand as something which is not equal to them. As a constitutional matter, there is equality before the law and that includes religious equality and that is where the Race Relations Act, which is relevant to religion actually, because religious minorities such as Sikhs and Jews are treated as having rights under the Race Relations Act and not under the Equality Act.  Compared with other countries? I don’t really know… the Americans, of course, have equality, and America is a deeply religious country, probably much more religious than we are. The French, of course, aspire to be a totally secular country, which I think it is not conducive to equality, but I don’t know enough to say how unjust it is. It is just a perception. The only other country I can probably comment on is Belgium. The ongoing dispute between both communities makes religion part of the identity of those two groups, which is very difficult. I think we are probably more tolerant and understanding than France and certainly Belgium. One advantage we have, for instance, over Holland, which has specific religious parties in Parliament: they will have the Christian socialists, the Christian democrats… we don’t identify any political party as a religious party, and certainly in my experience in the HofL religion is very seldom spoken about. We have our Lords Spiritual, our bishops… We refer to them from time to time. I have to say if I want to get a Christian point over to Parliament, I don’t call it that. I wouldn’t refer explicitly to the religious side and this would be more likely to have an impact, because there are different religions in the HofL and many people would know about religion.

Are there any challenges to living in accordance with your faith?  If so, are they social, legal or political in nature?

Currently, in the Lords there is about to be an assisted dying bill, which is basically about assisted suicide. As a Christian I strongly disagree with it. However, I think it is coming, and being a pragmatist, as well as a Christian, if it is going to come, I think it is better to try to improve it rather than having an ineffective opposition. I’ll take another example. I very much oppose same sex marriage, but totally approve of same sex partnership. I think using the word marriage is a step too far. I spoke against the bill in the House of Lords but when it became obvious that it was going to become law, I actually spoke consistently to improve the law. There is no point in fighting something when it is going to become law. So, I have a pragmatic approach. One has to recognise that if it is going to be the law of the land, one has to accept it. I think the CofE has put itself in a difficult position by being given a special status against same sex marriage, since quite a number of clergy quite openly, but others hidden, are gay. It does present challenges. 

Has the Human Rights Act been positive for British society?

When the HRA came into force, it required the judiciary to illuminate rather dark corners, where human rights were not embraced, but many members of the judiciary said, quite rightly, that the traditional Common Law already embraced without going into Art 1 or whichever number it would be. Consequently, I don’t think we actually had to change great many things, because the law as such had already embraced the concept of the 1950 Convention on Human Rights, drafted as you know by English people, and on the face of it, that worked well. I have considerable misgiving about its application because I think there has been particularly at local government level, but also social and police level, either a disregard of them or an over subservience to it. I think human rights have been carried beyond what is necessary. This is an issue of proportionality… There have been a number of situations in which it has not been proportionate, and there has been an over desire to exercise human rights probably to the detriment of other people. Having said that, I think the decisions of the courts, which may not have been very well expressed, have actually done a very good job in keeping balance… I am thinking of the wearing of the cross, the refusal to marry someone, the refusal to allow same sex couples to be in your premises… in those individual cases it seems to me that proportionality has been met. And I think in the Northern Ireland case quite recently the local baker who was asked to make a cake with the same sex couple thing on top of it and he said the could not do it… but if you offer a service to the public, you have to offer it to all members of the public and equality legislation requires that, and the equality legislation sits well with human rights.

The rights of children and the rights of parents raise interesting dilemmas. They have the right to know what is going on, and to take part in what is happening and to be consulted. What they don’t have is the same rights as adults to make decisions. However, once you have a child of sufficient age… Lord Denning gave a very important judgment in a case called ‘Gillick’, and in ‘Gillick’ he talked about the maturity of children, and nowadays that maturity could be at quite a young age, 10 or 11… as a general principle, religious decisions are very different, because it really depends on what your knowledge is. I am a firm believer that all children in my family should be christened. I am sad my grandchildren have not been confirmed, but I believe that at that age it is their business, although my husband had different views in relation to my younger son. When the clergyman in the boarding school said ‘I am not quite sure whether William ought to be confirmed’, my husband said ‘put him through. He can learn it later’. I don’t think that is the right way, but we put him through, although he didn’t last! And the most extreme example is a case, typical of a number of cases…. Where a Jehovah’s witness boy who was suffering from haemophilia had to have constant blood transfusions, and of course they haven’t found for the Jehovah’s Witnesses a suitable alternative to blood, and this boy was kept alive by the judge, who made orders, and when the boy was 17 and he said to the judge: ‘do you realise that when I am 18 I will die because I won’t take more blood transfusions?’, to what the judge responded ‘it is my duty to keep you alive while you are technically a child’. I tried a lot of cases where children had both physical and mental health problems and it was a case about how good the capacity of a teenage child is, as to whether they should have capacity to make decisions. It requires a degree of knowledge… there is a very interesting novel that has been written, the Children Act, and in it the young man didn’t really have a great knowledge of what was about and he was being, to some extent, forced by adults. There is no clear answer to your question.

Minority groups would say that (about the treatment of Art 9) and I think it is a question of ignorance, lack of religious literacy. It is a phrase which we hear in our interviews with people in our Commission. People underestimate the religion of other people. So, in some local communities there would be an injustice. Again, it is not an injustice which is national or within the Constitution, but there is some wonderful work going on in some areas of England and also in other parts of the UK, where the communities are meeting together on the broader forms of interfaith, and the Commission which I am chairing is a child of the Woolf Institute in Cambridge, initially between Jews, Muslims and Christians, but it is clear that it must go further, because you have other religions which you must bear in mind.

Is democracy a positive thing?  Does it make it easier for you to practice your faith?

I think this country has a relatively good liberal democracy, where we have freedom of speech, freedom of religion, freedom to do whatever is not against the law and we don’t start with all the things you can’t do. You do start with ‘you can do what you like within reason’. I would have thought that other democracies such as Australia or New Zealand would be very similar to us, and I would have thought that by the standards of many countries, particularly in Africa and Asia, we are very fortunate, and it is interesting the number of people who want to come here, who come here as immigrants and they say that one of the most valuable things about living here is the possibility to get on with their own lives, without undue interference. 

Do your beliefs mean that you feel that you have a duty to vote?

I feel very strongly about voting.  And we have that right…

Should Parliament have the final say in making and changing law?  Would you like to see the judiciary empowered to strike down legislation?

We don’t have a Constitutional Court in this country. The Germans and the Americans do, and I don’t think we have any need for empowerment of the judiciary. I think Parliament must be supreme. Of course, it is not supreme… the Court in Luxembourg is there… I don’t have any problems with the Court in Luxembourg overturning some decisions because my view is that they, by a large, give very good decisions. We are not obliged to follow the Court of Strasbourg, but we seem to follow Strasbourg decisions to an extent. Lord Judge has recently given a lecture about the fact that our Supreme Court should be supreme, because it is supreme only as far as Parliament allows it to be supreme. And you have situations in which once the law is made the Supreme Court applies it, but of course Parliament can change it. I think this is a good system. I am unhappy with the current thinking that we should get rid of the HRA because I think it will affect the Council of Europe, the EU… the devolved administrations… and I don’t know how it will be achieved, but if some fudge can be achieved, which pushes the Strasbourg Court further away, but doesn’t eliminate it, I think that would be the sort of English way… interestingly, nobody has suggested to the best of my knowledge that the Court of Luxembourg should no longer be supreme. Lots of criticism of Strasbourg, but not of Luxembourg… Of course, the media don’t really understand the difference between both. The headlines are always on Strasbourg. 

Are there barriers for some groups in participating in our democracy?

I can’t see how you can have a democracy which is not the will of the majority. It is self evident that it is the will of the majority. Without it, what we understand by liberal democracy would not really exist. Otherwise we would end up as a sort of Athens… I think if you have a democracy the only way to achieve is following the will of the majority. I think the criticism is not of the majority, but about the fact that people don’t vote, and we do have people on the left and the right who feel they are left out, because they are small groups and the downside of democracy is that sometimes daily politics don’t reflect the will of the minorities. I also believe there is a problem in getting some particular groups to vote, and I am thinking of the Muslims in particular, because they are four millions now. That is a very significant minority. Maybe Osborne’s concept of Greater Manchester in the north may mean that the central Government will have less control over local authorities and maybe that will be an encouragement for minority groups to have a say. So, I think the only way to go is by the majority vote, but also persuading people to vote both locally and nationally. 

Does it concern you that the House of Lords is not elected?

The last bill about the composition of the House of Lords was a very badly drafted bill. That was the main problem and there were two overwhelming issues about the bill, which was intended to make Parliament, the House of Lords accountable, but making the House of Lords subordinate to the House of Commons. They would say that it would not change the balance of powers between both Houses, but once the House of Lords was elected, they wouldn’t be listening to the Commons about them being subordinate, inevitably they would say ‘we have a right to discuss the budget, for example’… this is not what the Commons wanted. And secondly, they had to be accountable, but they would have been elected for a single period of 15 years… these were two basic points about the bill… and many other wrong things about the bill. So, before we start discussing the composition of the HofL, we need to deal with the constitutional issue concerning the relationship between both Houses. Now, we muddle along for the moment, but in an English way we do it quite well… we muddle along, because what we do is taking a bill after the Commons… for instance, the NHS bill by the time it went through the Lords it was a totally different bill. The Commons cannot really look at every bit of the bill unless it is extremely short, and because of that it can pass through without due consideration. We, to the contrary, consider every bit of it. Consequently, we are revising bills all the time. We are doing the House of Commons and the public a huge favour, because we are getting the bills to a sensible standard. And we also hold the Government of the day to account. These are the two things we do and currently we are doing it very well. So, I am hesitant about these possible benefits of an elected second Chamber. They are also arguing about judges not being elected, and you just have to see what happens in the States! So, I think that apart from the fact that we have far too many people and the Government of the day keeps appointing more people, if we could get ourselves down to 600, which I think we probably could, because we actually have 500 who turn up and out of the other 300 a few come, but if the majority of those who don’t come we could get rid of, one way or another, we would then have a reasonable number. I am hesitant about electing because the constitutional issues … it is so vital to have an Upper House… and we know our place at the moment, we know we cannot defeat the Government of the day, we can only delay, but the Government of the day knows we can have some very good ideas… 30% of our amendments are actually accepted by the Government of the day. 

How do you feel about bishops in the House of Lords?

I was vice-chairman of the Joint Select Committee (of both Houses) on modern slavery and the bishop of Derby asked to be a member, and he was extremely valuable. He knew a great deal about what was going on in his own dioceses, which is also very diverse, and he was a very helpful member of the select committee, which is what you want. They have a huge amount of experience. Some bishops don’t do very much. I think the suggestion is that 26 are too many. We should keep the two Archbishops and possibly other 14. That may be a sensible compromise. 

Do public bodies respect legislation?

I don’t have the most remote idea about whether or not public authorities uphold the will of Parliament. Some do and some don’t. I think some of the main tasks of local authorities are taken away by central Government. Social care is partially local authority and partially national. Roads then to be partially local, partially national. I think local authorities can be held to account by the amount of money they get. Having said that, I don’t have actual knowledge about how far they respect the will of Parliament. 

How should we ensure that those who exercise power are held accountable?

I thought the bishops’ pastoral letter dealt with it (accountability) very effectively. I think very large majorities give the Government of the day a sense of unfettered power, which is extremely dangerous and makes the HofL even more important, because no party in the HofL has the majority. Currently, there are over a hundred liberal democrats in the HofL, and the Government will never get the legislation through unless there is a consensus. I don’t see that my Anglican views matter. I think as a citizen, rather than as a Christian, I would want to see those who lead us act responsibly. I think on the whole, members of the HofC and HofL adhere with the desire to do the right thing for their communities and certainly the Commons do not have a particularly large salary. We are here because we feel we have a duty, an obligation to try to pass the laws. It is very important that MPs of the same party should hold their party to account, particularly if their party is in power. One of the interesting things in the Lords is that the Government of the day is not always supported by the Lords of its own party and it is extremely desirable to see that. I have been in the Lords through a Labour Government, the Coalition and now a Tory Government, but it is all the same, I have to say. Holding to account is crucial and I would like to see that the moves of the HofC towards strengthening select committees are carried on, because a strong chairman in the HofC can even call the PM to give evidence. This is highly desirable. 

Are Anglicans proportionately represented in public life?

I don’t know whether practising Anglicans are proportionately and appropriately represented in public bodies. There are Christians in Parliament, but Christians don’t need to be of the enthusiastic type. I don’t make a thing of my Christianity. There are Christians in Parliament who are very vocal about their Christianity in both Houses. I would think that at local government level it would be very unwise to speak publicly about Christian beliefs, because in a sense while religion is not relevant to the decision of the day, religion will influence your approach. I could not stand in the HofL and say ‘because I am a Christian, I would do this’. What I would say is ‘I think this is what ought to be done’. Local councils are now having problems with whether they should have prayers at the beginning of their meetings and I think Christianity should be low key. 

How do Anglicans challenge decisions which they perceive as problematic?

The CofE and the RC Church have formal methods of discussion with the Government of the day, and the CofE is of course represented by both Archbishops and the Lords Spiritual and the Archbishops of both Canterbury and York speak in debates. The other religions, on important issues, I would say that the main Churches are in agreement. The interfaith dialogue which is going on amongst the main Christian religions and other is a way to get unanimity. I suppose the issue where we would disagree is about whether we should go to war, but I don’t think it is the role of Christians to tell Parliament whether or not to go to war. 

Do public authorities understand the needs of practising Anglicans?

I don’t think local authorities, courts, Parliament, etc, fully understand the needs of practising Anglicans. There is a huge amount of religious illiteracy. It is fuelled by the media. It is one of the things we have learnt in our Commission… how little we know and how important dialogue is going to be and how important understanding each other is going to be. I think this is important in the next Thursday debate about who is my neighbour. And particularly I am going to talk about the significance of understanding other religions and the importance of finding common ground and so on. So, I think it is much broader than a particular religion. There are areas where you want to see changes, but I suspect they tend to be community errors, rather than particularly Christian. There are Christian groups who want to see changes, but they are usually minority groups, who will not be listened to, particularly the fundamentalist Christians, who have a lot in common with the fundamentalists in other religion, and you only have to think of the Bible belt in the States. 

Do you believe that you have a duty to speak out for third parties, especially the vulnerable?

I do speak out in Parliament, but for instance my major concern over the last 18 months has been slavery and human trafficking and I am a trustee of the human trafficking foundation, vice-chairman of the select committee of both Houses on the bill. On that I have been speaking consistently in the last 18 months in Parliament. I speak on children… one of the important things in the Lords is not to talk about things one doesn’t know enough. There has been a lot of welfare legislation about which I have been careful how much I speak… and I have only done it about areas I really know when my job in speaking is largely in Parliament, but on the human slavery I have been lecturing in various places, because I have knowledge about this area and it is so widespread in this country. There are thousands in this country who are slaves… not just sex slaves.

As a Family judge I am horrified that there is no legal aid for family cases other than in certain circumstances. One of the exceptions is when the child is at risk, but how do you know when a child is at risk until you go before the court and you have father and mother fighting each other and the child is right in the middle? The judges have now to deal with it with the help of social workers, who are overwhelmed, because there is no legal aid. And one of the things the Government of the day, and the Labour Government was as bad… so, there is nothing to do with the particular type of Government… both Governments want to cut costs… they see the £2 billion on legal aid as too expensive, but they don’t realise that if you can settle cases they go quickly and the lawyers get relatively low fees. People don’t realise that family lawyers, as well as criminal lawyers, are not particularly very well paid. The solicitors who do either Public Law or Private Law child cases do not get much money, but what they are doing is giving good advice to the parties, tell the judge what the problem is… all that is gone. There is a lot of lack of justice at the moment in Family Law, Criminal Law and to an important extent in Civil Law as well. Family Law barristers and solicitors subscribe the protocol that puts children before adults. They cannot really do the work they should be doing and it is now chaos as a result. 

Are there any laws which you see as having an unequal impact?

I don’t know of any law like this at the moment. I have heard the Queen’s speech and I have read it since. I am not very keen in some of the legislation which is being proposed, and I am particularly concerned about counter-terrorism. That is hitting minority groups. I am fortunate not to be in that minority. It is very interesting. My younger son, who was a rebel when he left boarding school, I remember he was in Brixton, that was very rough at that stage, and my older son told me: ‘Are you worried about Will?’ and then I said ‘No, I am not worried about Will. I am worried about my car!’, but he was stopped with his black friends half a dozen times and he was never stopped when he was on his own.  I am talking about twenty years ago, but I don’t think it has changed that much. I think there are minority groups, particularly Muslims, who see themselves as the target of this counter-terrorism: all Muslims seem to be the target, not just extremists. I am extremely concerned for any new counter-terrorism legislation and how you get the right balance between national security and the protection of the public, is turning the public against a minority group of 4.2 million, particularly the young men… This could be very dangerous, because we are targeting them (as they perceive it), as the entire culture of the Muslims, rather than just a very small minority of very dangerous people. I don’t think white people face the same. Sikhs faced similar discrimination a few years ago. They tend to be confused with Muslims. This is striking in the States. So, I think some minorities are in real distress about this new legislation. I don’t know, however, all the new legislation which is coming. 

Is there anything you would like to add?

When I was in Leeds, I think it was a Sikh who said to the commissioners who were there ‘when you come out of the church, look at the other communities’. I think the most important thing that must be done in this country at grassroots level, not from the top but in local areas, is to encourage religious communities not to be distrustful of other communities. They must tolerate others at least and if possible, engage in dialogue and find things in common, work together… It is impressive. An orthodox Jewish lady gave evidence to us about running a nursery in a very poor housing estate for all children, although she is an Orthodox Jew, and that is the best sort of thing that can be done, and we need to encourage them. The importance of listening, rather than talking… just wanting to know what my neighbours think and understand them. That is probably the most important thing which we should be seeking, and as a member of one religion is our duty as Christians, but also it is the duty of Sikhs, Muslims, Hindus, Buddhists, Zoroastrians and everybody else. We have this duty and not to decry other religions, beliefs… and laugh at their cultures, but open them up. They must do it as much as we do it. It is the religious communities who are inward-looking who at some stage will have to break down those barriers.

(B. 10 August 1933).  Ann Elizabeth Oldfield Butler-Sloss, Baroness Butler-Sloss, GBE, PC, is a retired English judge. She was the first female Lord Justice of Appeal and until 2004 was the highest-ranking female judge in the United Kingdom.  Called to the Bar aged 21 (Inner Temple); practised from 1955 to 1970.  She became a Bencher in 1979, Treasurer of the Inner Temple in 1998; after serving as a Judge of the Family Division from 1979-88 and first woman Lord Justice of Appeal 1988-99, she became President of the Family Division (1999-2005).

In 2006 Baroness Butler-Sloss was awarded a Peerage (as a Peoples’ Peer) and joined the Crossbench Peers.  She consulted the government helping to shape and write the Adoption Act 2010, and continues to take a great interest in child welfare and family legislation.  She was Chairman of the Post Legislative Adoption Committee (April 2012 -publication of Report March 2013); a Member of the Joint Select Committee on the Modern Slavery Bill (Lords Members appointed 15 Jan 2014 – Report published 7 Apr 2014). She is Vice-Chair of the All Party Parliamentary Group on Human Trafficking and played a key role in advising on the Modern Slavery Act (2015). She is also a Trustee of the Human Trafficking Foundation and was part of the UK delegation to the International Judges’ Summit on Human Trafficking & Organised Crime held in the Vatican on 2 – 4 June 2016.

She is Chairman of the National Commission on Forced Marriage, expected to publish its findings later this year – and Chairman of the Commission of Religion & Belief in Public Life (CORAB); she has been a Member of the Ecclesiastic Committee since 2014 and a Patron of the Westminster Education Forum since 2010.  In 2015-16 she chaired the Working Group Review into St. Margaret’s Church, Westminster.  Since 2015 she has been a Member of the All Party Parliamentary Group (APPG) on the Rule of Law.

Lady Butler-Sloss was Chairman of the St. Paul’s Cathedral Advisory Committee 2000-2009; Chancellor of the University of the West of England (1993-2010 & now Emiratus Chancellor).  She is a Visitor and Hon Fellow of St Hilda’s Oxford, Peterhouse Cambridge, Corpus Christi College Cambridge, King’s College London, The Royal College of Physicians, Royal College of Psychiatrists & Royal College of Paediatrics & Child Health. She is an Hon. Doctor of Laws – University of Bath (2004) and The Open University (since 2005) and the LSE.  She is a Governor of Merchant Taylors’ School, Coram & is President of the Grandparents’ Association and Vice-President of Hospiscare, Devon.