The heterogeneous origins of religion as a category in law in the United Kingdom: Implications for education

Abstract

This paper examines the origins of ‘religion or belief’ as a protected characteristic as it came to be enshrined in the Equality Act 2010. In relation to the Equality Act 2010, heteronomous definitions, derived from race relations legislation can tend toward a conflation of race and religion. An example of this is the Mandla v Park Grove School case (1978) which determined the right of a Sikh boy to wear a turban to school through the application of the Race Relations Act 1976. Later jurisprudence including Begum v Denbigh High School (2006) and legislation such as the Racial and Religious Hatred Act 2006 further draws upon the language of race to treat of religion or belief, resulting in a heterogeneous (mis)representation of religion which tends both toward essentialism and a deficit model of religiosity. With reference to education, a Christian welfarist orientation toward ‘religious instruction’ can be traced back to 1788, in the 20th century this begins to be supplanted by a concern for ‘religious neutrality’ derived from colonial practices of governance in India. Drawing on these, it is possible to recover a more positive and authentic definition of the role of religion in UK law.

Introduction

This paper traces three distinct historical pathways which contributed to the working definitions of ‘religion or belief’ as a protected characteristic in the UK’s Equality Act 2010. This landmark piece of legislation brings together several other pieces of anti-discrimination law in the UK to establish broad-based anti-discrimination and anti-incitement protections. Alongside race, sex, disability, sexual orientation and others, religion and belief, including the absence of religion or belief, are protected, a situation which draws heavily on the uniquely religious framing of much of the UK’s policy history of community relations, multiculturalism and community cohesion. By tracing these different strands and their penetration into British education and wider society, it is possible to see that a narrow definition of religion, synonymous with ethnic and communal identity and the meeting of obligations, has tended to obscure the more expansive spiritual and cultural resources religions and beliefs offer for speculative fabulation (Carstens, 2020) at an individual and pluralistic societal level.

The Parekh report (2000) represented an unique watershed moment, incorporating much of the theoretical contribution of the Bristol school of multiculturalism (Levey, 2019) into the thinking of policy-makers. The central concept of the Parekh report, of recognising Britain not only as a liberal community of individuals but as a ‘community of communities’ is even echoed in the remarks of King Charles III to faith leaders upon his accession (2022). In contrast to its reactive predecessor, the Scarman report (1981), which had framed community relations in the aftermath of racially charged civil unrest in Brixton and Toxteth (Neal, 2003), or its successors the Cantle report (2001) and the Casey report (2016) which also followed civil unrest in Oldham and Woolwich, the Parekh report represented a proactive attempt to position 21st century Britain as a multicultural nation. The report draws upon a conception of recognition rights, which involve appreciating the values and loyalties held by different communities within the UK; belonging is as important as procedural justice (Modood, 2017).

Influenced by the work of Charles Taylor (2011), Parekh’s multiculturalism recognises the rights of cultural groups to enter into public and political debate without having to leave behind their religious and cultural identities and commitments. Parekh presents a normative defence of multiculturalism, that is to say, cultural diversity is to be understood as a value and not merely a fact. Parekh’s long-standing colleague at Bristol University, Tariq Modood, was one of the first to capture the phenomenon of young British Muslims engaging politically as a religious, rather than racialised, identity group (1992). Like Parekh and Taylor, Modood is critical of radical secularist approaches to cultural integration, favouring approaches which respect and acknowledge the sources of cultural knowledge. Indeed, it is possible to question whether attenuated conceptions of comprehensive liberalism are capable of marshalling the resources necessary to conceptualise normative pluralism (Lundie, 2022). In this regard, he advocates a normative sociology, which challenges the ways that knowledge construction can contribute to othering (Modood, 2007). It is in relation to this conception of recognition rights, and a normative understanding of plurality as both a moral and epistemic value, that the legal definition of religion as it pertains to UK education ¹ needs to be acknowledged.

Religion or belief as a legal category

Rights-based jurisprudence

The category of ‘religion or belief’ as a protected characteristic as it came to be enshrined in the Equality Act 2010 in the UK draws on key debates which were more or less contemporaneous to the Act. The Racial and Religious Hatred Act 2006 was passed in the aftermath of a number of failed prosecutions against the far right, in which defendants had successfully argued that harassment and spreading defamatory materials about Muslims based on their faith did not constitute incitement to racial hatred as defined by the Public Order Act 1986 because Islam is not a race, nor a characteristic exclusive to one racial group (in contrast, harassment of Jewish or Hindu communities would have constituted incitement to racial hatred).

An initial proposal in the Anti-Terrorism, Crime and Security Bill 2001, would simply have added the wording ‘and religious’ to the offence. This proposal, however, drew intense criticism, including from religious groups, the National Secular Society, comedians and free speech advocates. A strict reading of the new wording, it was argued, would stifle legitimate criticism of religious beliefs, whereas similar criticism might be entirely unjustifiable where directed toward an immutable characteristic such as a person’s race. In the House of Lords, Lord Hunt of Wirral drew attention to a report by the Joint Committee on Human Rights, which argued that:

without amendment to make specific reference to advocacy of religious hatred that constitutes incitement to hostility, violence and discrimination, we have concerns about the potential adverse impact of broad offences on freedom of expression (Hansard 25 Oct 2005 Column 1071).

After six attempts in Parliament to outlaw incitement to religious hatred (Goodall, 2007), the final wording of the law was considerably narrower, but still ultimately based upon, the incitement to racial hatred law originally contained in the Race Relations Act 1976, and amended by the Public Order Act 1986. Whereas, however, the scope of incitement to racial hatred included ‘abuse, insult or threat’, in the case of religious hatred, only the last category, ‘threat’ was covered. Importantly for this paper, however, ‘religious hatred’ was defined as ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief’. The meaning of ‘defined by’, suggesting a person does not need to hold the belief being denigrated, tends toward an essentialist definition of religious identity. The addition of ‘lack of religious belief’, the result of lobbying by Humanists UK, was intended to ensure equal protection under the law for those experiencing hatred as a result of holding or being identified with a non-religious worldview. To this definition, derived from, and analogous to the definition of Race in the Race Relations Act 1976, was added ‘belief’ in the Equality Act 2010, defined as ‘any religious or philosophical belief. . . [including] reference to a lack of belief’ (Section 10.2).

Prior to 2006, much of the protection afforded religious minorities in Great Britain ² had been provided in relation to the racialised nature of many minority religious communities. An important precedent is the case of Mandla v. Park Grove School (1978). The case established the right of a Sikh child to wear the turban, contrary to a school uniform rule against hats. The court held that the burden of proof was upon the school to establish that the rule is justified (Singh, 1999). The principal legislation underpinning the Mandla ruling was the Race Relations Act of 1976, which defined discrimination to have occurred when a requirement ‘is such that the proportion of persons of the same racial group . . . who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it’ (Singh, 1999: 192). The House of Lords, upholding the ruling, was clear that the term ‘can comply’ should be understood in the sense of ‘can in practice or consistent with the customs and cultural conditions of the racial group’ (Mandla v Lee, 1983). The question, in other words, is not whether the pupil could physically comply by removing the turban, but the cultural conditions of possibility as understood within the racial/religious group. This establishes a threshold of possible compliance, which is significantly lower than a threshold of recognition rights or free religious expression. Where compliance would be beyond the cultural conditions of possibility for the religious minority group, subsequent case law has stressed the need for ‘reasonable accommodation’ (Gibson, 2013; Griffiths, 2016) The 2003 Employment Equality (Religion or Belief) Regulations, which also cover vocational and higher education, employ a similar approach.

The nature of this right to accommodation is the subject of a subsequent legal case: R (Begum) v. Headteacher and Governors of Denbigh High School, which was subject to a High Court and Court of Appeal hearing in 2004, with the appeal subsequently overturned in the House of Lords in 2006. The facts of the case involved a secondary school student, Shabina Begum, who attended Denbigh High School in Luton. With a majority (around 79%) of its students coming from the local Muslim community, the school had consulted widely with parents, local mosques and community governors in the design of its uniform, allowing pupils who did not wish to wear the traditional uniform to wear hijab and salwar kameez (Idriss, 2005). Two years into her time at Denbigh High School, at the age of 13, Begum insisted on wearing a jilbab – a full-length baggy cloak covering the shape of the body except for the hands and face – the school refused, on the basis that its uniform requirements had been agreed in consultation with the parents and religious leaders of the local Muslim community. The case turned on an interpretation of Article 9 of the European Convention on Human Rights regarding the student’s right to manifest her religion, and whether this constitutes a substantive or procedural right. This represents a different, more proactive standard than the threshold of possible compliance consistent with cultural norms established by the Mandla ruling.

The Court of Appeal, in its judgement in favour of Begum, held that the school had not given appropriate procedural consideration to the rights of the student. In the Court’s opinion, the school had approached the issue from an ‘entirely wrong direction’ (Thio, 2007: 123) on two counts. Firstly, the school had assumed the right to religious expression belonged in some collective sense to the Muslim community, as expressed by mosque leaders and community governors – in some sense the earlier Mandla ruling, understood in a racialised rather than human rights framing, requires precisely such an approach, requiring what is consistent with the customs or cultural conditions of the group. In recognising the Begum case as a question of religious expression, rather than of race relations, and the rights of the individual to express their religious beliefs, this latter ruling moves toward a more autonomous reading of religious identity, proper to religion itself rather than as a subsidiary of purported racial-cultural groupings. Secondly, and significantly for the later House of Lords ruling, the Court of Appeal held that the school had proceeded from the presumption that the uniform policy was to be obeyed, and thus had failed to attribute due weight to the student’s beliefs in establishing whether the rule is justified. The school had later claimed in its defence that it had concerns about community cohesion, not wishing its Muslim students to visibly manifest different tiers of rigour in their religious practice, and concerns about Ms Begum being coerced by an older brother with links to an extremist organization (Fernandez, 2009). Holding Begum’s Article 9 right to religious expression to be procedural in nature, the Court of Appeal ruled that the school could not introduce these considerations as ex-post-facto rationalisations when there had been no procedural test (Malik, 2008) in the school’s original decision making process. Overturning this decision, however, the House of Lords noted that Article 9 is not a procedural but a substantive right (Edwards, 2007); the right to free religious expression, and the proportionate reasons that might justify limitations, are not merely rights to due process, and therefore if the reasons put forward by the school were indeed proportionate, then the restriction was justified, whether or not those reasons figured in their original decision making process.

The addition of ‘or belief’ in the 2010 Equality Act to the definition of religion given in the 2006 Act has the effect of both shifting the definition, as per the Begum case, away from a quasi-racialised category, toward a concern with individual rights. In the case of Casamitjana Costa v. League of Cruel Sports, a 2020 employment tribunal held ethical veganism to be a non-religious philosophical belief worthy of protection under the Equality Act 2010 on the basis of five criteria:

• - It must be genuinely held;

• - It must be a belief and not an opinion or view point based on the present state of information available;

• - It must be a belief as to a weighty and substantial aspect of human life and behaviour;

• - It must attain a certain level of cogency, seriousness, cohesion and importance; and finally

• - It must be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

This represents something of a departure from, much of the legal protection hitherto afforded to religion or belief, which has been defined heteronomously. The facts of the case, involving Casamitjana Costa revealing confidential information about the charity’s investments, were never ruled on due to a settlement, but the definition is significant in that it represents a positive action on the basis of belief, rather than a negative exemption from some behaviour or expectation. This development, associated with ‘belief’ rather than ‘religion’ represents a more authentic understanding of the role of religion in informing the judgement of conscience, which leads to the acceptance of responsibility for some good accomplished, and not only the avoidance of taboo actions. Freedom of conscience is not to be understood as the liberation of conscience from any external standard in favour of a liberal autonomy in personal decisions, but by a person allowing themselves to be guided by the truth of religion or belief. Its central focus is the act of aspiring and submitting to God, or to objective truth, as a source and judge of what is good, a point which is ironically easier to see in relation to a non-religious or philosophical belief, than in relation to the contested truth claims of different religions.

While the protected characteristics of race, gender, sexuality and disability represent the work of equalities campaigners from those communities to arrive at definitions that reflected the understandings of their communities, the definition provided for religion largely rests on a presumption of immutability derived from race, which occasionally imposes impairments requiring reasonable accommodation, terminology derived from disability discrimination law. This pairing of religion with race tends toward a framing deriving from ethnic or communal identities, rather than philosophical or existential commitments. Such an approach has significant shortcomings. Religion has another important and long-standing place in English Law, however, in relation to schooling. In its educational framing, a more edifying and apposite approach to religions’ spiritual, moral, social and cultural benefits and religious communities’ recognition rights may be traced.

As a category in education law

In contrast to equalities law, in which ‘religion or belief’ was the last of the protected characteristics to gain its own distinctive legislation, religion’s place in educational law precedes the introduction of compulsory state schooling. Two distinct trajectories of the role of religion in education law may be traced; the first relating to the provision of ‘religious instruction’ in England and Wales, and the second relating to ‘religious neutrality’ in the context of colonial education in British India. These two trajectories begin to find a confluence in the 1970s, with the groundbreaking Birmingham Living Together Agreed Syllabus of 1975, and Schools Council Working Paper 36 in 1971, both of which sought to reinscribe religious education for an increasingly pluralistic and secular society.

The first trajectory, identifying the rights of children and duties of employers in relation to religious instruction, begins with the Chimney Sweepers Act of 1788 (Fancourt, 2022), which provided that apprentices be permitted to receive religious instruction. By the Factories Act of 1802, a requirement provided that young apprentices ‘for the space of one hour at least every Sunday, be instructed and examined in the principles of the Christian religion, by some proper person to be provided and paid by the master or mistress of such apprentice’ (cited Fancourt, 2022: 500). In Forster’s groundbreaking Elementary Education Act of 1870, threefold provision is made for flexibility in religious instruction in line with the wishes of parents: first, that admission not be dependent on church or Sunday school attendance; second, that parents may withdraw their children from religious instruction and that its timing in the school day facilitate such withdrawal; and thirdly that religious instruction not follow a ‘religious catechism or religious formulary which is distinctive of any particular denomination’ (cited Fancourt, 2022). This last provision, together with the later establishment of locally agreed syllabuses, has been characterised as laying the groundwork for a religious instruction based on ‘consensus Christianity’ (Bell, 1985). Similar provisions were enacted in the Education (Scotland) Act of 1872, though inflected through the unique context of the Great Disruption in the Scottish Presbyterian churches of the time, rather than a focus on non-denominational instruction, the Scottish legislation proceeded to protect religious freedom by exempting the content of religious instruction from inspection, an exemption which held until the 21st century. These arrangements represented a particular liberal sentiment respecting parental conscience in the 19th and early 20th centuries, in contrast to more paternalist critics who would have granted the established Church of England greater powers, for example in relation to parents whose children entered the workhouse (Moore, 2008). As the provisions of the 1870 Act were largely retained and built upon in the 1944 Education Act, the compulsory provision of religious instruction, with the continued parental right to withdraw, became part of a broad Christian-humanist consensus around ‘education for freedom’ (Steele and Taylor, 2010). This broad welfarist trajectory treats instruction in religion as being to the general spiritual, moral, social and cultural benefit of the child. In contrast to the characterisation of 19th century religious statutes as providing inadequately theorised commitments to individual liberty (Rivers, 2017), as Oliva and Hall (2017) note, the overarching positive stance the British state continues to take toward religion in general, and toward religious organisations.

The second trajectory, emerging instead in British colonial efforts in India, emphasises a neutrality toward religion, celebrated as the unique contribution of British history, but reinscribed for a context in which the separation of religion from civic life, law and fundamental values was often alien and imposed only through colonial techniques of control. The reauthoring of the British East India Company’s charter in 1813 required the Company ‘to take measures for the introduction of useful knowledge and religious and moral improvements’ and this paved the way for the first government run schools, half a century before the 1870 Act would provide the same in England. The Company’s governor general from 1828 to 1835, William Bentinck, made it clear that he ‘would only allow toleration of religious beliefs to the extent that they were humane and consonant with reason and natural justice’ (Carson, 2012). The ironic invocation of toleration by Charles Napier, Governor of Sindh, in relation to the abolition of widow-burning or sati is indicative of this view. Responding to some Hindu priests who complained that this was a religious custom, and that the Company had agreed to respect these customs, Napier retorts:

Be it so. This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs (Napier, 1851).

In her theoretically rich treatment of the meaning of sati and its implications for colonial and subaltern thought and law, Gayatri Chakravorty Spivak (1988) draws attention to a broader sweep of history, involving collaboration and consultation by the colonial authorities with ‘learned Brahmans to judge whether suttee was legal by their homogenized version of Hindu law’. Spivak draws attention to the epistemic violence which results from enshrining the outcome of this consultation in the codification of colonial law, thereby shifting the apparatus and domain through which the practice of sati was interpreted.

[T]he redefinition as a crime of what had been tolerated, known, or adulated as ritual. In other words, this one item in Hindu law jumped the frontier between the private and the public domain. . . ritual as opposed to crime, the one fixed by superstition, the other by legal science (Spivak, 1988: 94).

The redefinitions of religion which are required in order to enable religious toleration in British colonial India reflect the trading interests of the Company, even after religious neutrality is enshrined in the Proclaimation of Empire in India in 1858. The caste system was permitted as a ‘religious’ tradition, for example, while traditional systems of land ownership were not. The philosophical intertwining of free trade and toleration in the British colonial project finds a famous advocate in John Stuart Mill, who spent many years of his life in the service of the East India Company. Bikhu Parekh, one of the foremost writers on multiculturalism in Britain, takes aim at J.S. Mill’s legacy in India, conflating his views with that of his father, James Mill, whose historical account of India, true to Spivak’s characterisation of epistemic violence, dismissed the totality of Hindu learning and culture as ‘useless or worse’ (Bearce, 1961). Parekh sees Mill as willing to use the coercive apparatus of the British state to impose on the people of India a ‘monistic vision of the good life’ (Parekh, 1994: 13), derived from Western Enlightenment values. While Mill does indeed write in favour of despotism to uphold rights and enforce toleration, his preference even here is for ‘nonauthoritative intervention – giving advice and providing non-exclusive alternatives’ (Tunick, 2006: 598). An example of this would be the idea that the state should require parents to educate children but should not claim a monopoly on education.

An incident in Mill’s career with the British East India Company which may be illustrative of a nuance missing in Parekh’s characterisation is the reauthoring of the Company’s charter to include educational provision in 1813, which opened the way for public investment and inspection of education some decades before such provisions would be made in England. A controversy began almost immediately between ‘orientalists’, who stressed the value of Indian languages and learning in the education of an indigenous administrative elite, and ‘anglicisers’ who demanded the assimilation of educated Indians to English language, literature, sciences and customs. India represents a special case in British colonial history given this ambivalence toward indigenous religion and culture, in contrast to more assertive missionary activity in British colonial efforts in Africa and South East Asia. Governor General Macaulay’s minute of 1835, reserving funds only for English language education, appeared to settle this dispute once and for all. A draft despatch of the following year, however, drafted by Mill under the title ‘Recent Changes in Native Education’ cautions against too hasty an implementation, and argues for the importance of teaching Hindu and Islamic legal scholarship for the administration of justice in India (Tunick, 2006). Still more forcefully, Mill cautions against an attempt to introduce the Bible into Madras’s schools (McCully, 1966): ‘Just as English Protestants would not want their children placed in a Roman Catholic seminary’, Mill contends, writing of the incident later ‘we should not expect Hindus to expose their children to the dangers of being made Christian’ (Robson, 1963). Such was Mill’s influence in this matter that the final inquiry into education under the East India Company in 1853 continued to enjoin ‘strict neutrality’ on religion in government schools (Keay and Karve, 1959), with neutrality often interpreted as absence. As with the latitude afforded religious exemptions in the UK, such neutrality was not without its contemporary critics, with evangelicals accusing the East India Company of concerning itself solely with the profitability of its subjects, and ignoring the question of whether they would ‘in any sense, be better – better as men, or nearer Heaven’ (Kaye, 1859: 377). So comprehensive was the exclusion of the religious from education in British India that a campaign by the Sunday Mirror in 1880 bemoans ‘the tone of the Bengali primers read in our schools. We are sorry to say, these books totally eschew the religious sanctions of morality, so much so that the word God is not to be found in their pages’ (Murdoch, 1889).

This second trajectory, marked by an indifference or containment of religion separated from fundamental values, marks a distinct influence on postcolonial and postconfessional understandings of the role of religion in British public life. On the one hand, it represents some acknowledgement of the significance of recognition rights for minority religious communities. On the other hand, as in its colonial origins, it can be marked by forms of indifference as to the material consequences of religious belief provided these do not interfere with trade and public order.

The origins of a confluence between the two trajectories laid out above in the contemporary practice of religious education in England’s schools emerged in contradistinction to a similar context, the US Supreme Court decision in Abingdon School District v. Schempp (1963) which ruled that even a non-confessional reading of the Bible in public schools was ‘a religious exercise. . . that cannot be done without violating the ‘neutrality’ required of the State’. It is from the latter trajectory that the authors of Schools Council Working Paper 36 (1971) respond, not pointing to the Establishment of the Church as providing a justification for English schools to continue to teach about religion, but rather to the need for a new framing which extended the denominational neutrality of the 1870 Act toward a multi-faith neutrality. The Working Paper opens with the Abingdon v. Schempp ruling, and the recognition of growing secularity and diversity, before going on to construct a new, postcolonial justification for a non-confessional multi-faith Religious Education in England.

The passage of the 1988 Education (Reform) Act had the effect of enacting into law the scope of the retitled ‘religious education’, providing that it should ‘reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain’ (Section 8.3, cited Barnes et al., 2023). In Section 8 and 84–88, the basic requirements, and much of the language, of the 1944 Act are retained and reiterated. A further conscience clause is inserted, adding the right of teachers to refuse to teach religious education. More detail is provided on the composition of Standing Advisory Councils on Religious Education (SACREs) and Agreed Syllabus Conferences, which are required to review the locally agreed syllabus at least every 5 years, and must be comprised of four committees, representing (A) religious groups other than the Church of England, to include the principal non-Christian faiths in the area, (B) representatives of the Church of England, (C) the teaching unions, and (D) the local authority. In an influential editorial of the British Journal of Religious Education, John Hull (1989) argued that the new requirements gave legislative force to the kind of multi-faith religious education that was already embedded in many areas by more practice-led documents such as the Birmingham Agreed Syllabus. Although, again, there have been notable critics of this interpretation (Barnes, 2008; Thompson, 2008), Hull’s interpretation, in line with the latter, religious neutrality trajectory, while retaining the prior consensus around the civic benefits of a broad consensus education in religion(s), has tended to dominate subsequent practice. The 1988 Act’s ambiguous wording, yet unambiguous recontextualisation into practice represents an ‘English compromise, pragmatic, written by. . . officials. . . clear but flexible and inclusive with a set of values whose origins are unclear’ (Emerson-Moering, 2007: 11). All of the provisions in the 1988 Act were retained in the two subsequent major Education reform Acts, in 1996 and 2010, even though the latter Act decouples many schools from the oversight of their Local Authority. The relationship between Academy schools and the Locally Agreed Syllabus has been clarified in subsequent non-statutory guidance.

A key of these two interpretations coming into conflict took place in 2015, in which a High Court ruling (Fox v Secretary of State for Education) found that the Department for Education had erred in law when developing the new Ofqual GCSE Religious Studies standards, which no longer allowed students to study non-religious worldviews as a discrete category through a religiously non-specific philosophy and ethics paper. In its response to this ruling, the Department stated that it was for schools and Agreed Syllabus Conferences to determine how they meet their wider obligations (DfE, 2016), suggesting that covering the GCSE syllabus content is insufficient to meet these legal obligations. This ruling makes clear both that schools do need to give regard to non-religious worldviews in religious education, and that religious education’s duty under the 1988 Act to ‘take account of’ the principal religious traditions in Great Britain, interpreted in light of the Equality Act, invests religions and worldviews with recognition rights with respect to the curriculum.

Implications for education

In conclusion, there appear to be two distinct currents of jurisprudence; the first relating to students’ right to religious expression in schools, and the second relating to schools’ provision of religious education. In the former current, a definition of religion derived loosely from race and anti-racial discrimination legislation, tends to hold. In the latter, an appreciation of education in religion as being to the welfare of all students is balanced with a neutrality as to the promotion of any particular religious belief system or organization.

Left to itself, the first of these currents tends toward an essentialising of religion in a way that fundamentally denudes it of its capacity to influence society’s fundamental values. At worst, this way of thinking can lead to the imputation of religion as an immutable characteristic, akin to race, such that populations are unable to express the complex intersections of class, geography, culture and other identities which always coexist with religion, a process Panjwani (2017) pathologises as ‘religification’. Religion, in this way of thinking, is only worthy of protection when it is a culturally imposed synthetic necessity, as in the Mandla ruling on the wearing of the turban.

In relation to religious education, an English latitudinarianism and a post-colonial neutrality intersect. Again, at times, this latter approach can tend toward essentialism, a celebration of plurality only in so far as it treats of the less challenging aspects of public religious ceremonial. Mixed in with this, however, is the enduring conviction, despite secularisation and plurality, that learning about religions and beliefs contributes to the spiritual, moral, social and cultural development of young people on a level more profound than merely understanding the reasons for different groups’ public practices. The recognition rights afforded in the Fox ruling extend beyond a right to practice or a right to withdrawal, toward a right for one’s beliefs to be accorded the respect of being worthy of the critical evaluation which constitutes curriculum time. Whereas the former strand of jurisprudence is proper to Human Rights law in general but also applies to educational spaces and to students as rights-holders, this latter strand has yet to permeate beyond the school walls. Indeed, it is to the former set of legal provisions that the Higher Education Academy largely refers when outlining provision for supporting religious inclusion even in higher institutions of learning (AdvanceHE, 2018).

Religion in this more expansive definition, to which we may also add non-religious and philosophical belief, concerns civil freedom to act in accordance with, and aspire toward, a conception of ultimate truth. Adhar and Leigh (2012) for example, identify that relationality is fundamental to a Christian anthropology of self-worth, and not fully encompassed by an individualistic freedom of association. There are many things to commend a wider application of this latter definition of religion and belief as providing a more expansive understanding of the edificatory potential of religion and belief in public life, challenging, disturbing, disrupting public life, within due limits, in ways that respect the rights of all citizens to fulfil not only their sense of minimum religious obligation but their highest forms of self-realisation.