NONE OF THIS IS LEGAL ADVICE. IF YOU WANT LEGAL ADVICE, YOU SHOULD CONSULT A SOLICITOR.

This is a short article on the status of Paganism in English law. I originally wrote it in 2018, and it is not guaranteed to be up to date. Nevertheless, it may be of interest.

Introduction

Before the nineteenth century, England was an explicitly Christian country. It had a powerful established church, the Church of England, and Christian doctrine was regarded as being part of the law of the land. In the nineteenth and early twentieth centuries, the old Anglican state began to disintegrate. The English ruling class opened its ranks in turn to non-Anglican Protestants, Roman Catholics, Jews and atheists. Mass religious observance began to decline, never to recover. By 1917, it had been confirmed by the highest court in the land that Christianity was not part of English law [Bowman v Secular Society Ltd [1917] AC 406].

England today is no longer a legally Christian country. The Church of England is still nominally an established church – although the church was disestablished in Wales in 1920 – but it has little more than a formal, ceremonial role in public life. English judges have spoken explicitly of a “divide between Church and State”. [Starting with Mr Justice Simon Brown in R (Wachmann) v Chief Rabbi [1993] 2 All ER 249 at 255, subsequently endorsed at Supreme Court level by Lord Hope in R (E) v Governing Body of JFS [2009] UKSC 15 [157].] State neutrality between religions is in any event required by the European Convention on Human Rights (ECHR). [See esp. Manoussakis v Greece [1996] ECHR 41 and Sahin v Turkey [2005] 44 Eur HR Rep 99.]

Having regard to the secular, multi-religious character of modern England, this article will look at the question of whether Paganism is recognised as a religion in English law.

Why does it matter?

There are five ways in which recognition as a religion may be legally significant:

1. The right to freedom of religion in Article 9 of the ECHR (which is given effect in domestic law by the Human Rights Act 1998).

2. The legislation against religious discrimination (the Equality Act 2010 and Article 14 of the ECHR).

3. Registration of religious premises under the Places of Worship Registration Act 1855. This confers certain advantages, in particular tax relief and the potential ability to host weddings.

4. Charitable status, which also entails tax relief.

5. Protection against incitement to religious hatred. This offence, which was controversially introduced by the Racial and Religious Hatred Act 2006, is extremely difficult to prove. It can be regarded as a dead letter for practical purposes.

The evolution of the law

Historically, Pagans in England were treated in more or less the same way as other unpopular minorities in premodern societies. They were liable to be regarded as “enemies” who were not under the King’s protection and could not sue for justice in his courts. [Yearbook 12 H8, fol. 4, as cited in Calvin’s Case (1608) 77 ER 377; East India Company v Sands (1695) 89 ER 988; Hawkins, Pleas of the Crown, 1.126; Blackstone, Commentaries, 4.18.2.] Under the Blasphemy Act 1697, it was illegal for a Christian to convert to a Pagan religion (although this was never enforced). It was not decided until 1745, in a case concerning a Hindu, that a Pagan could even be a witness in court. [Omychund v Barker (1745) 26 ER 15.]

We now live in more enlightened times; but the law in this area is still a mess. There are three separate sets of legal authorities on what amounts to a religion.

First, there is the case-law deriving from the ECHR. This ultimately comes from a 1982 case called Campbell that was decided by the European Court of Human Rights (it had nothing to do with religion, but leave that aside). [Campbell v UK [1982] ECHR 7511/76 at 36] The judgment in Campbell spoke of “views that attain a certain level of cogency, seriousness, cohesion and importance”. These four criteria have since been refined into what amounts to a three-part test. So, something that claims to be a religion must:

1. be consistent with basic standards of human dignity and integrity. This excludes, for example, beliefs entailing “torture or inhuman punishment”.
2. relate to matters that are not merely trivial. It must “possess an adequate degree of seriousness and importance”.
3. be “coherent in the sense of being intelligible and capable of being understood”, although it is recognised that religion “is not always susceptible to lucid exposition or, still less, rational justification”. [R (Williamson) v Secretary of State for Education [2005] UKHL 15 at 23]

[Note from 2025: what has happened over the last few years is that a set of criteria from an Employment Appeal Tribunal case called Grainger – which related to secular philosophical beliefs regarding climate change – have come to be used as a test in cases regarding religion. These criteria, which essentially reflect what is said above, can be found at para. 24 of the judgment here.]

Second, there is the case-law under the Places of Worship Registration Act. The two key cases were both generated by the Church of Scientology. In 1970, the notoriously eccentric judge Lord Denning decided that Scientology couldn’t be a religion because it didn’t involve “reverence to a deity”. He immediately noted that there were “exceptional cases” that didn’t require theism, such as Buddhism, but he didn’t elaborate further on what they might be. [R v Registrar General, ex parte Segerdal [1970] 2 QB 697 at 707] In 2013, the Supreme Court returned to the question in the case of Hodkin. Speaking for the majority, Lord Toulson rejected Denning’s approach. Referring to case-law from Australia, he adopted the less restrictive approach of asking whether the movement in question has certain “indicia” that are characteristic of religions across cultures:

I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. … Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula. [R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 at 57. The Australian case was Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 57 CLR 785.]

Pausing there, it is interesting to note that these two approaches diverge. The ECHR test starts with the implicit presumption that something is a religion, and then measures it against three rather undemanding criteria. The Hodkin doctrine, by contrast, is to approach the “something” neutrally and to ask whether it has certain characteristics that are associated with religions.

Third, there is the definition of religion that applies under charity law. This is a notoriously difficult and incoherent area. Traditionally, a body that existed for the “advancement of religion” would automatically be entitled to charitable status. As late as 1980, this criterion was being interpreted as being confined to monotheism, under the influence of Denning’s judgment in Segerdal. [Barralet v Attorney General [1980] 3 All ER 918 at 924] But since the enactment of the Charities Act 2006, the law has expressly recognised “religion” as including polytheistic and nontheistic religions.

The Charity Commission’s interpretation of the law, as set out in its published guidance, identifies the characteristics of a religion in the following way:

• the belief system involves belief in a god (or gods) or goddess (or goddesses), or supreme being, or divine or transcendental being or entity or spiritual principle, which is the object or focus of the religion (referred to in this guidance as “supreme being or entity”);

• the belief system involves a relationship between the believer and the supreme being or entity by showing worship of, reverence for or veneration of the supreme being or entity;

• the belief system has a degree of cogency, cohesion, seriousness and importance;

• the belief system promotes an identifiable positive, beneficial, moral or ethical framework.

This is an eclectic combination of several different criteria. The first point is effectively a modern version of the traditional requirement for monotheism, adapted in the light of the Charities Act 2006. The second point is also monotheistic in origin and comes from Segerdal. The third point is taken from the ECHR case-law. The final point is unique to charity law, and makes sense within that context.

How it has worked out in practice

There have historically been difficulties in obtaining recognition for Pagan religious traditions. Back in 1977, the European Commission of Human Rights rejected a case from a prisoner who was seeking to (amongst other things) register his religion as Wicca. The Commission held that “the applicant has not mentioned any facts making it possible to establish the existence of the Wicca religion”. [X v UK (1977) 11 DR 55] This decision would almost certainly not be followed today, although it has never been formally overruled. Indeed, it was quoted with approval in a House of Lords case in 2005, and it is treated as authoritative by the standard encyclopaedia of English law and by a major textbook on the law of religion. [R (Williamson) v Secretary of State for Education [2005] UKHL 15 at [57]; Halsbury’s Laws of England, vol. 88A, para. 372; Neil Addison, Religious Discrimination and Hatred Law (London: Routledge-Cavendish, 2007), 8.] In 1988, the Commission heard a legal challenge arising out of disputes over access by Druids to Stonehenge. In this instance, the Commission did not refuse to recognise Druidry as a religion; but it did effectively avoid the question, deciding the case on other grounds. [Chappell v UK (1988) 10 EHRR 503.] In 1998, in another Stonehenge case, the Commission appeared to accept implicitly that Druidry was a religion. [Pendragon v UK (1998) HUDOC 19 October.]

There is a tangled history of Pagan bodies attempting to register under charities law with the Charity Commission. The Odinic Rite (now the Odinist Fellowship) managed to obtain registration back in 1988, followed by the Odinshof in 1989. These two bodies were joined in 1995 by the Pagan Hospice and Funeral Trust, which had been seeking charitable status for the previous decade. Then the Charity Commission’s position changed. In 1996, the Pagan Federation applied for registration and was refused. For good measure, the Charity Commission then deregistered the Pagan Hospice and Funeral Trust and forced the Odinshof to re-constitute and re-register itself. Another Pagan body, the Pagania Trust, was denied registration in 2000. The Druid Network was denied registration in 2006 but was subsequently granted it in 2010. The Pagan Federation was refused registration for a second time in 2012. [Note from 2025: the Pagan Federation has since been granted registration.]

Going back to the courts – and leaving aside the ECHR cases from Strasbourg – the first case in which a Pagan tradition was formally recognised as a religion came along in 2006. It arose out of an employment dispute involving Donald Holden, a former employee of Royal Mail, who was a member of the Odinist Fellowship. The Tribunal held that Mr Holden had been unfairly dismissed on the basis of his religion and ordered the Royal Mail to pay compensation. The judgment stated:

The Tribunal finds Odinism to be a belief system based on the pre-Christian heathen religion of the British Isles. It is polytheistic and honours the Odinic pantheon of deities with particular regard being paid to the deity of Odin or Woden. It has a concept of the secular and the spiritual worlds and the relationship between them. It has a broad code of ethics based on what are called the Nine Noble Virtues. It has rituals and ceremonies including the Cup of Remembrance, Naming, Pledge of Faith, Wedding and Laying to Rest. It does not have any sacred texts as such but it pays special heed to works known as the Prose Edda and the Poetic Edda which it regards as sources of information about the heathen religion. [Holden v Royal Mail Group PLC [2006] ET/2403904/05.]

It was in 2013 that the English justice system first recognized Wicca as a religion. As with the Holden case, the recognition came in an Employment Tribunal claim for unfair dismissal. The Tribunal found that the claimant, Ms Holland, had suffered religious discrimination (as well as sex discrimination, which formed another plank of her case). [Holland v Angel Supermarket Ltd ET/3301005/13.]

These cases were only Employment Tribunal decisions, which do not have any binding legal force for the future. Only a higher court can set binding precedents. Nevertheless, there are encouraging signs that Paganism is becoming a recognised religious tradition in the English courts. Paganism features in the official guide to equality and diversity published by the Judicial College, known as the Equal Treatment Bench Book. Since 2006, there has been a special form of the courtroom oath for use by Pagans. A guide published by ACAS, the state-run employment conciliation service, mentions Pagan religions in an appendix, under “Other Ancient Religions”. The guide states that examples of such religions are “Druidry, Paganism, Wicca, Astaru [sic], Odinism and Shamanism”; and it provides a list of applicable festivals, dietary requirements, clothing, and bereavement practices.

Nevertheless, one of the standard encyclopaedias of employment law still states baldly, in its section on protection against religious discrimination: “Witchcraft, voodoo and the like, it is to be presumed, will not qualify.” [Harvey on Industrial Relations and Employment Law, L.210] So perhaps there is still some way to go. [Note from 2025: this statement was expressly disregarded by the Employment Tribunal in the recent case of Wint v Walsall MBC.]