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Frank Cranmer and David Pocklington

Property rights in England and Wales and the applicability of Hindu law

The facts

Singh v Singh & Anor [2014] EWHC 1060 (Ch) was a dispute in a family of Sikhs, between Bal Mohinder Singh, the claimant, and his sons Jasminder Singh and Herinder Singh, over the ownership of certain properties, including Tetworth Hall and shares in a hotel group, Edwardian Group Limited (“EGL”). The case was heard by Sir William Blackburne, a retired judge of the Chancery Division.

What made the case so unusual (and engaged our interest) was the claimant’s assertion that the disputed property was a joint family asset held in accordance with the principles of the Mitakshara: the legal code written in the latter part of the 11th century CE and the basis of the orthodox system of Hindu law which prevails in most of India – and under which a Hindu (and, by extension, a Sikh) family living and eating together as a composite household may hold its property jointly:

“The beneficial interest in property of a joint Hindu (or Sikh) family, if held subject to the Mitakshara, belongs jointly to the male members of that family down to the third generation from a common male ancestor. The male members are sometimes called ‘coparceners’. The property owned by the coparceners is frequently referred to as ‘coparcenary property’” [para 2].

The case was one of extraordinary complexity. In paragraph 56 of his particulars of claim Bal Mohinder Singh pleaded that the

“… principles and customs [of the Mitakshara] provide the content of a constructive trust which governs the family property of the Singh family by virtue of the common understanding of Father, Mother and their children throughout the period when the property was being acquired that they all had beneficial interests in that property which were in accordance with those principles” [para 4].

Jasminder Singh contended that what he held in his name, including in particular Tetworth Hall and his shares in EGL, was beneficially his own and not held by him as joint family property in accordance with the Mitakshara – and that until the dispute had first arisen he had never heard of the Mitakshara, let alone understood how it operated [para 5].

Given that the point at issue was a matter of foreign law, both sides adduced (conflicting) expert evidence in their support. As a  legal theorist, the expertise and interest of Professor Werner Menski lay in the sociological role and impact of Hindu law as it affects the lives and culture of the peoples who are subject to it rather than in the day-to-day operation of the law in question.  In contrast to Professor Menski, Dr Mohan confined himself almost entirely to setting out the relevant principles of the Mitakshara and how they operated in practice. At para 82 Sir William described Dr Mohan’s knowledge of “black-letter law” as “impressive” and relevant to the enquiry which faced the court in resolving the dispute. In addition, Sir William took note of two textbooks on Hindu Law,  Mulla’s Principles of Hindu Law, now in its 21st (2010) edition of which he was provided with the 10th (1946) edition , and Mayne’s Hindu Law & Usage, 16th edition (2010).

As to the facts, Sir William pointed out that:

  • the court was not “shown a single document out of the voluminous quantity disclosed which assumed that any property that was being acquired was a joint family asset” [para 169];
  • “without exception none of the witnesses had heard of … Mitakshara … before these proceedings began or, perhaps more tellingly, could recall a single occasion when there had been any discussion of the concept of joint family property [para 170]; and
  • there were documents before the court evidencing dealings or setting out wishes that were inconsistent with any understanding by Bal Mohinder Singh (let alone any common intention between him and Jasminder) that the property was to be dealt with in accordance with Mitakshara principles [para 171].

He concluded that at no material time had there been any common understanding between the claimant and the defendants that any property acquired and legally owned by each or any of them would be subject to a common understanding that Mitakshara principles applied to it. Claim dismissed.

Comment

Singh v Singh & Anor is at the outer limits of our interests and its complexities are somewhat beyond my technical competence. But the reason for bringing to the attention of readers of this blog is a simple one, given recent media controversies about the relationship between secular and religious law. At para 82 of his judgment Sir William stated that the establishment and content of the common intention constructive trust whose existence Bal Mohinder Singh was seeking to establish

“… served as the means by which English Law would give effect to the Mitakshara principles so far as they related to the ownership and management of joint family property; in other words, it was those principles which provided the trust with its content”.

The implication of this is that there are circumstances in which the secular courts in the UK will enforce religious law as foreign law.

Sir William dismissed the claim on the facts: he concluded that there was no evidence before him to suggest that the parties had believed that the coparcenary principles of Mitakshara applied to the property in dispute. What he did not do was to suggest that those principles could not have been applied had there been evidence to the contrary. Had the parties believed that the disputed property was subject to Mitakshara principles, then there is no reason to assume that the court would not have enforced them. After all, the court had heard expert evidence from both sides as to their applicability.

Frank Cranmer

We should like to thank Simon Hunter of Thirteen Old Square Chambers for bringing this case to our attention.

The Council of Europe on sects: update

At the end of March we posted about the report of the Legal Affairs and Human Rights Committee of the Parliamentary Assembly of the Council of Europe on The protection of minors against excesses of sects. We noted in particular a passage in the draft Resolution included in the report, as follows: That the Assembly

“… strongly condemns the ‘excesses of sects’, namely acts which have the purpose or effect of creating, maintaining or exploiting a state of psychological or physical submission in an individual, causing harm to that individual or for society. Such excesses may cause human rights violations, particularly in terms of the health, physical and psychological integrity, schooling and social and emotional development of minors, who are often removed from their family environment and/or cut off from any outside contact”

and suggested that the wording was extremely unfortunate, given that nowhere in the document was the word “sect” defined.

It now appears that wiser counsels within the Assembly have prevailed. On 10 April the Plenary adopted an amended text, as follows:

“1. The Parliamentary Assembly underlines the commitment of the Council of Europe to a policy for the protection of minors, which has led to the adoption of a number of conventions in this area, including the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201), the Convention on Action against Trafficking in Human Beings (CETS No. 197) and the European Convention on the Exercise of Children’s Rights (ETS No. 160), and which may be relevant where the excesses of sects lead to exploitation and abuse of or trafficking in children or to disregard for their rights in the framework of judicial proceedings.

2. The Assembly is particularly concerned about the protection of minors, in particular minors who belong to religious minorities including sects. It is committed to a policy for respect for freedom of religion or belief as stated in Article 9 of the European Convention on Human Rights (ETS No. 5) and condemns intolerance and discrimination against children on grounds of religion or belief, in particular in the education system.

3. The Assembly itself has adopted texts on child protection and welfare, including Recommendation 1551 (2002) “Building a 21st century society with and for children: follow-up to the European Strategy for children (Recommendation 1286 (1996))”, Resolution 1530 (2007) and Recommendation 1778 (2007) “Child victims: stamping out all forms of violence, exploitation and abuse” and Resolution 1952 (2013) and Recommendation 2023 (2013) on children’s right to physical integrity.

4. The Assembly is concerned when any minors are abused in any way. It is vital that existing legislation be firmly applied and that this is done within the context of respecting the rights of children and their parents in line with Articles 9 and 14 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights.

5. The Council of Europe has always promoted a culture of “living together” and the Assembly has spoken out on several occasions in favour of freedom of thought, conscience and religion, as well as in favour of minority religious groups, including those which have recently appeared in Europe, in particular in Recommendation 1396 (1999) on religion and democracy and Recommendation 1804 (2007) on State, religion, secularity and human rights and in Resolution 1846 (2011) and Recommendation 1987 (2011) on combating all forms of discrimination based on religion. The Assembly believes that any religious or quasi-religious organisation should be accountable in the public sphere for any contraventions of the criminal law and welcomes announcements by established religious organisations that reports of child abuse within those organisations should be reported for investigation to the police. The Assembly does not believe that there are any grounds for discriminating between established and other religions, including minority religions and faiths, in the application of these principles.

6. The Assembly notes that, in conformity with Resolution 1530 (2007), the protection of minors, parental rights and freedom of religion or belief are to be promoted in any context, whether public (including public schools, hospitals, etc.) or private (including private education systems, the family, sport and other recreational activities, religious activities, etc.).

7. The Assembly therefore calls on the member States to sign and/or ratify the relevant Council of Europe conventions on child protection and welfare if they have not already done so.

8. The Assembly also calls on national parliaments to set up study groups on the protection of minors, in particular those belonging to religious minorities.

9. The Assembly calls on member States to ensure that no discrimination is allowed on the basis of which movement is considered as a sect or not, that no distinction is made between traditional religions and non-traditional religious movements, new religious movements or “sects” when it comes to the application of civil and criminal law, and that each measure which is taken towards non-traditional religious movements, new religious movements or “sects” is aligned with human rights standards as laid down by the European Convention on Human Rights and other relevant instruments protecting the dignity inherent to all human beings and their equal and inalienable rights”.

Though the Resolution still does not attempt to define “sect”, much of the objection to the wording of the original draft has fallen away, given the sentiments of para 9 of the adopted text. In other words, all manifestations of religion of whatever kind should be judged by the same objective legal standards.

As The Economist’s admirable Erasmus blog concludes:

“It’s not often that Jehovah’s Witnesses, secularists and humanists find themselves on the same side, and rejoicing for the same reason, but this seems to be one such moment”.

Charities, religious groups and pre-election lobbying

The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 c.4 which received Royal Assent on 30 January 2014, inter alia amends the provisions within Part VI of the Political Parties, Elections and Referendums Act 2000 on the controls relating to third party national election campaigns, placing additional constraints “non-party campaigning” in the run-up to future elections and referendums.

Non-party campaigners are individuals or organisations that campaign in elections, but are not standing as political parties or candidates. These are referred to as “third parties” in electoral law and two forms of activity are regulated: “local campaigning” which covers campaigns for or against a particular candidate; and “general campaigning” which cover campaigns for or against: a political party; parties or candidates that support particular policies or issues; or particular types or groups of candidate.

The current rules will continue to apply in the run-up to the elections being held on 22 May 2014, the date for the European Parliament election and local elections in England[1], for which the “regulated period” commenced on 23 January.  The 2015 General Election is most likely to be 7 May[2] and the new rules under the 2014 Act will apply from 19 September 2014.

The changes to be introduced include: circumstances in which the rules apply; registration thresholds; what spending is covered; how much campaigners can spend on regulated activities; and what campaigners need to report to the Electoral Commission.  A much wider range of campaigning activities fall within the new rules, including: election material (as currently covered) made available to members of the public; canvassing, or market research seeking views or information from, members of the public. Including the use of phone banks; press conferences or media events; transport in connection with publicising a campaign; and public rallies or other public events.

Electoral Commission Guidance

The Electoral Commission[3] is the key body with responsibilities in this area and is tasked with writing guidance on Part 2 of the Act.  As the statutory regulator, it has the powers to monitor the legislation and to issue civil penalties and enforcement notices. The Commission is seeking input from charities and campaigning groups ahead of publishing guidance by early July 2014, and has provided interim guidance on its web site, including a number of informative FAQs.

Significantly, the Electoral Commission’s Guidance states, [our emphasis]

“The campaigning activity may be regulated even if your intention is to achieve something else, such as raising awareness of an issue. The activity may also be regarded as intended to influence voters even if you do not name a political party or group of candidates as part of your campaign.”

This is important given the political nature of many of the policies of interest to charities and religious groups, and in relation to the environmental area potential areas in which the new legislation might be tested include: the route of HS2; hydraulic fracturing; wind turbines; flooding; badger culling; and even hunting of foxes with dogs, which is still on the agenda of some groups.

Two aspects of these issues are likely to be problematic to the coalition government: the local (i.e. constituency) impacts of specific policies, although with HS2 and fracking in particular, a large number of constituencies is likely to be affected; and in the assessment of its delivery of its promise to be “the greenest government ever[4], which even in 2010 seemed implausible to some[5]. The politicization of environmental issues, where the interpretation of what would be regarded as “sound science” is influenced by the political agenda, is likely to bring many of the activities of charities as well as protest groups within the scope of the new Act.

On 7 April 2014, the Electoral Commission reported results of a survey it had undertaken on the new Act[6], which indicated a significant interest from charities, which comprised about two-thirds of respondents (64 per cent), 16 per cent were from campaign groups and 6 per cent from a trade union or professional organization.  Of these, almost (88 per cent) were planning activities in the run-up to the 2015 UK Parliamentary general election; over 70 per cent of respondents are planning email or website-based campaigning, 65 per cent are planning report launches and 61 per cent are planning to use leaflets. Only 20 per cent of organisations said that they were planning to use advertising boards.  The Electoral Commission indicated that its guidance would be available in July, although its web site currently provides informative assistance through its comprehensive FAQs[7].

Comment

Prior to the House of Lords second reading of the Bill, we reported Baroness Jay of Paddington, the chairman of the Lords’ Constitution Committee, as saying

“The committee is concerned about the restrictions on the right to freedom of political expression that will result from the proposal to limit third-party expenditure at general elections. We think this constitutional right should only be interfered with where there is clear justification for doing so.

“We are also concerned that the lobbying bill will not achieve its objectives of increasing transparency and restoring public confidence. We have therefore recommended that the House of Lords considers whether the limited definition of lobbying in the bill, which excludes in-house public affairs work and covers only communication with ministers and permanent secretaries, will provide adequate transparency.

“We are critical of the hurried way in which this legislation has proceeded, which has resulted in a lack of consultation. Bills of constitutional importance such as this should not be rushed through Parliament.”

The next twelve months will demonstrate the extent to which these issues were addressed during the subsequent passage of the Bill or whether these early concerns have been demonstrated in practice.

The Commission on Civil Society and Democratic Engagement has produced a useful summary The Lobbying Act: Analysis of the law, and regulatory guidance recommendations


[1] Direct elections for all 32 London boroughs, all 36 metropolitan boroughs, 74 second-tier district authorities, 20 unitary authorities and various mayoral posts, all in England. Elections to the new councils in Northern Ireland will also be held on the same day

[2] Under section 1(2), Fixed-term Parliaments Act 2011 c.14, the polling day for the next parliamentary general election will be 7 May 2015, although section 1(5 to 7) provides for a two month extension of this date, and section 2 addresses circumstances under which an earlier date may be set.

[3] Established under the Political Parties, Elections and Referendums Act 2000, the Electoral Commissions is independent of Government and political parties and is directly accountable to the UK specifically to the Speaker’s Committee of the House of Commons, which is appointed in accordance with the provisions of the Act.

[4] James Randerson, “Cameron: I want coalition to be the ‘greenest government ever’”, The Guardian 14th May 2010; D N Pocklington, ““Becoming the greenest Government ever?”, Industry Soundings, [2010] 22 ELM (3) 44.

[5] “The greenest government ever? Don’t make me laugh”, The Guardian on Friday 23rd July 2010

[6] This was not specifically directed at organizations with an interest in the environment.

[7] FAQs for non-party campaigners at the UK Parliamentary general election in May 2015

Religion and law round up – 13th April

Caste discrimination

We noted the publication on 9 April of the Commons Library Standard Note SN06862 The Equality Act 2010: caste discrimination, which gives an overview of the concept of caste, explains the existing law and sets out the background to the order-making power inserted into the Equality Act 2010.

Conservatives “doing God” again

Conservative ministers have returned to the theme of religion. Eric Pickles told delegates to the Conservative spring forum in London that non-believers should not be able to impose “politically correct intolerance” on others:

“I’ve stopped an attempt by militant atheists to ban councils having prayers at the start of meetings if they wish, Heaven forbid. We’re a Christian nation. We have an established church. Get over it. And don’t impose your politically correct intolerance on others”.

In what reads like an off-the-cuff speech but which was much more measured (the post on God and Politics is worth reading, as always) David Cameron spoke at his Easter reception at No. 10 of his own Anglicanism and committed the Government to fighting persecution of Christians abroad:

“I hope we can do more to raise the profile of the persecution of Christians around the world. It is the case today that our religion is now the most persecuted religion around the world. I think Britain can play a leading role in this … We should stand up against persecution of Christians and other religious groups wherever and whenever we can, and should be unashamed in doing so.”.

Two rather different sides of the coin. No-one would condone persecution of anyone on religious (or any other) grounds. But the UK “a Christian nation”??

Latter-day Saints and business rates

The ECtHR has published its own legal summary of the issues in Church of Jesus Christ of Latter-Day Saints v United Kingdom [2014] ECHR 227, about the refusal to grant the Mormon Temple in Preston the full statutory exemption from business rates under the Local Government Finance Act 1988 for places of “public religious worship” We posted our own analysis of the judgment here.

Modern slavery

We noted the Archbishop of Canterbury’s welcome for the report and draft Bill by the Parliamentary Joint Select Committee on Modern Slavery. the Committee’s Report includes its own draft Modern Slavery Bill, produced as a revision to the Government Bill “to illustrate the ways in which [the Committee's] recommendations might be translated into legislation”.

Registration of religious groups and Articles 9 & 11

In Magyar Keresztény Mennonita Egyház and Ors v Hungary [2014] ECHR the Second Section ECtHR found by a majority (Spano and Raimondi JJ dissenting) that the requirement in Act no. CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities for religious communities not listed on the face of the Act to apply to Parliament for re-registration violated Articles 9 and 11 ECHR. Though measure was “prescribed by law” and could be considered to have the legitimate aim of attempting to combat financial fraud by certain religious groups, its means of doing so were not “necessary in a democratic society”.

As we noted, the court held that it was inconsistent with the state’s duty of religious neutrality that religious groups not named in the Act were treated differently from incorporated churches without any objective grounds for such treatment. Nor should religious groups have to apply to Parliament and canvass political parties for their votes in order to obtain re-registration.

The Church of England on civil partnerships

On 11 April, the Church of England submitted its response to the Government’s consultation on the future of civil partnership, the 12 week consultation period of which closes next Thursday.  The key point is the Church’s belief that civil partnership should not be abolished, and in response to specific questions [our emphasis],

- “the retention of civil partnership will mean that Christian and other same-sex couples who hold the traditional understanding of marriage as being between a man and a woman, will still have a social and legal framework in which their relationship can be honoured and recognised, (Q1);

- “we believe that this constituency for civil partnership extends beyond those who chose civil partnership over marriage on religious grounds, (Q2)”;

- “we do not believe that a case has been made for extending civil partnerships to opposite sex couples. Our arguments for the retention of civil partnership are based on the need to maintain an option for those same sex couples who wish for proper recognition of their relationship but do not believe that their relationship is identical to ‘marriage’, (Q3);

- “ … where one member undertakes gender reassignment …we agree that it should be made as straightforward as possible for such couples to translate their civil partnership into a marriage. Such a couple would have made the transition from being, in law, a same sex couple to being an opposite sex couple … However, we believe that, because the relationship remains one between the same two individuals, and where their bonds of affection and commitment are untouched by the gender reassignment of one party, the transition to marriage should be made in such a way as to emphasize the continuity of the relationship, (Q7).

The relevance of this last point is that under section 5B of the Marriage Act 1949, as amended, a priest in the Church of England or Church in Wales may refuse to solemnize a marriage if gender has been acquired under the Gender Recognition Act 2004 Act.  The Church is clearly anxious to retain this conscience clause.

Women as Lords Spiritual

The Church Times reported that officials are looking look for ways to fast-track women into Lords once their admission to the episcopate has been incorporated in law; and in a later post we will consider the implications involved in making changes to the relevant legislation: the number of bishops in the Upper House was first limited (to 26) by the Bishopric of Manchester Act 1847 and the present arrangements are made under section 5 Bishoprics Act 1878.

Future of English Heritage

The Government’s proposals for the future of English Heritage [1], outlined in the DCMS Consultation English Heritage New Model, were the subject of a short Westminster Hall debate on Wednesday, [2 April : Vol 578 Col 264WH]: a new charity retaining the name “English Heritage” would be established for the conservation and public enjoyment of the National Heritage Collection, taking full responsibility for delivering the eight-year programme and running the Collection until 2022/23; the Commission’s other duties and responsibilities for preserving England’s wider historic environment will be delivered by the smaller non-departmental body “Historic England”.

Speaking as the Second Church Estates Commissioner, Sir Tony Baldry (Banbury) (Con) stated that although the Church of England agrees strongly with the proposed benefits of the new model for the national heritage collection, it is concerned that the new charity may have an adverse impact on the funding available to churches, and requested that the importance of ecclesiastical heritage not in the care of English Heritage be given due weight in funding decisions.

Research into historical buildings and their treatment is important work undertaken by English Heritage using its own properties, and if the new charity does not take on the conservation research team, Historic England should be allowed to access the national heritage collection for research.

He concluded by emphasizing that the advice currently provided by English Heritage to the Church of England through its response to faculty consultations, to staff membership of diocesan advisory committees and to the Cathedrals Fabric Commission for England is extremely valuable. This input helps to keep the ecclesiastical exemption strong and robust, and the Church requested that the advisory work should continue with Historic England and be free at the point of delivery.

APCMs

Those who are about to attend their Vestry Meetings for the election of churchwardens under section 4, Churchwardens Measure 2001 and subsequent Annual Parochial Meetings under the Synodical Government Measure 1969 No. 2 might find some light relief in the Beaker Folk’s Post Minutes of the Annual Moot Meeting.

And finally… Scotland, corroboration and canon law

In a speech to the Law Society of Scotland the Secretary of State, Alistair Carmichael (LLB, Solicitor and Notary Public), suggested that “the greatest threat to the distinctiveness of Scots law seems to come from those who are arguing for independence”. He was particularly scathing about the proposal to abolish the requirement for corroboration in criminal trials, suggesting that

“… we seem to have got to this position with the Scottish Government openly acknowledging that their policy is deeply flawed but asking the Scottish Parliament to pass it all the same and promising to sort it out later”.

He describes the proposal as “a reckless misadventure” that should be abandoned.

As it happens, we entirely agree with him that the rule should not be scrapped: from a perspective South of the Border it looks like a valuable safeguard against people being convicted merely on their own uncorroborated confessions that we could probably do with in England and Wales. However, where the Secretary of State for Scotland has drifted off-beam is in his apparent assumption that the issue has anything whatsoever to do with independence or, primarily, much to do with the Scottish Government. The proposal originates not from Scottish ministers but from Lord Carloway’s recent review of Scots criminal law and practice.

Perhaps surprisingly, the rule in Scots law was derived from the canonical ius commune, as Lord Carloway points out at 7.1.9 of his report. The Romano-canonical rule which required proof by two or more sworn witnesses was transposed into secular law, though its subsequent development was extremely complex.

Lord Carloway explains at para 7.2.13 that the current rule:

“… does not require two witnesses in the original Romano-canonical law sense of two testimonies, each confirming guilt. It requires one such testimony and another witness speaking to facts which make the truth or accuracy of the first witness’s evidence more likely. Whether these facts do make the first witness’s evidence more likely to be true is a matter of judgment, upon which there can be disagreement, even amongst the judiciary. Even then, it is not every fact which the law imbues with this corroborative characteristic. Although a statement made by a witness to a third party immediately after an incident may, if proved, lend support to that witness’s veracity, a jury would be directed that, even so, it does not provide corroboration as it emanates from the same source (i.e. the same witness)”.

He regards the rule as outmoded and, to cut a long story short, recommends at para 7.2.57 that

“the current requirement for corroboration in criminal cases be abolished; and in solemn prosecutions where there is no corroboration of testimony, there should be no requirement on the judge to warn the jury of any dangers perceived purely as a consequence of the absence of such corroboration”.

As suggested above, we happen to disagree with Lord Carloway’s recommendation – not that our opinion on the matter counts for anything. Very much more to the point, however, so do the current Lord Justice General and Lord President of the Court of Session, Lord Gill (you can see his statement on the issue here on YouTube) and all three of his surviving predecessors: Lord Hamilton, Lord Cullen of Whitekirk and Lord Hope of Craighead.

But whatever one’s views of the merits or demerits of the proposal, it is not simply some bright idea dreamed up by politicians at Holyrood: it’s the considered and carefully-researched opinion of the current Lord Justice Clerk – the second most senior judge in Scotland after the Lord President. Whoever wrote the Secretary of State’s speech should have been better informed.


[1] English Heritage (officially, the Historic Buildings and Monuments Commission for England) is an executive non-departmental public body sponsored by the Department for Culture, Media and Sport (DCMS).

Caste discrimination: the Government’s progress

An earlier post plotted the timeline of events from the Report stage of the Enterprise and Regulatory Reform Bill 2012-13 on 4 March, when House of Lords overwhelmingly on the inclusion of “caste” as a protected characteristic under the “race” criterion of the Equality Act 2010, to the issue of a Press Release of the Equality and Human Rights Commission on 15 November 2013: the EHRC’s CEO, Mark Hammond, responded to the concerns raised by the Alliance of Hindu Organisations, (AHO), an organization opposed to these developments with whom the Minister for Sport, Tourism & Equalities, Helen Grant, (Con. Maidstone and the Weald in Kent) is reported to have stated:

“I made no secret at our meeting – and nor do I now – of my disappointment that it has been necessary for the Government to concede to making an order to include caste as an element of race in the Equality Act 2010.

We remain concerned that there is insufficient evidence of caste-based discrimination to require specific legislation. We also have concerns that incorporating caste into domestic law – even in the context of anti-discrimination – may send out the wrong signal that caste is somehow becoming a permanent feature of British society.”

Under this compromise agreed by Government, section 97 of the resulting Enterprise and Regulatory Reform Act 2013 amended section 9(5) of the Equality Act 2010 to require a Minister of the Crown to exercise the power to make caste an aspect of race, i.e.

“A Minister of the Crown must by order … amend this section so as to provide for caste to be an aspect of race

Although “may” in the original draft was replaced by “must” in the version as enacted, the section did not specify a time by which the power must be exercised but on 29 July 2013 the Government published a timetable of events, see below,and on 28 February, the research undertaken by the Equality and Human Rights Commission was published [1].

Overview

On 9 April the Commons Library Standard Note SN06862 The Equality Act 2010: caste discrimination was published, which provides an overview of the concept of caste, explains the existing law and sets out the background to the order-making power in the Equality Act 2010.  After examining the meaning of the term “caste”, it traces attempts at introducing “caste” as a protected characteristic within the UK parliament, from its consideration during the passage of the Equality Bill (Bill No 131 of 2008-09) under the Labour administration.  Although an answer to a Parliamentary Question in June 2007 had indicated that caste discrimination would be considered by the Labour Government as part of its Discrimination Law Review which preceded the Equality Bill, [HL Deb 19 June 2007 cWA33], the government response to the consultation on the Bill made it clear that caste discrimination would not be addressed.

The Standard Note includes relevant extracts from the debate at various stages of the Equality Bill and the Enterprise and Regulatory Reform Bill, and the National Institute of Economic and Social Research report in December 2010 as well as the more recent EHRC work [1]. It also notes the non-binding Resolution of the European Parliament of 10 October 2013 the European Parliament which called upon the Commission

“to recognise caste as a distinct form of discrimination rooted in the social and/or religious context, which must be tackled together with other grounds of discrimination, i.e. ethnicity, race, descent, religion, gender and sexuality, in EU efforts to fight all forms of discrimination; calls for the EU, in its policies and programmes, to consider people affected by caste-based discrimination as an identifiable group”

and the non-binding judgement at the preliminary Employment Tribunal hearing of Tirkey v Chandok (ET/3400174/13), 24 January 2014 which held that caste discrimination may already constitute unlawful race discrimination, and that “caste” may be an aspect of race under section 9(1) of the Equality Act 2010.

Comment

The Government’ timetable on its consultation on how best to prohibit caste discrimination was announced on 29 July 2013 and includes:

- preparation of a full public consultation, drawing on research;

- issue of consultation in February or March 2014, lasting for twelve weeks and concluding in May/June 2014;

- analysis of consultation responses and conduct sector-specific engagement during summer 2014 the Government;

- publication of Government’s consultation response and draft order during autumn 2014;

- twelve-week consultation on the draft order ending in February 2015;

- the final draft order likely to be introduced to Parliament during summer 2015.

On 25 March 2014 Lord Avebury (LD) asked “on what date the Government Equalities Office wrote to all government departments seeking their approval to launch the consultation on the introduction of caste legislation”, although in reply Baroness Northover (LD) said “Government does not disclose information relating to internal discussions in order to preserve “collective responsibility”, HL Deb 25 March 2014 cWA93.

Nevertheless, when the consultation is published the debates relating to the inclusion of caste discrimination as a protected characteristic will be revisited, for which the recently issued Standard Note provides a valuable source of reference.


[1] Equality and Human Rights Commission Research report 91, Caste in Britain: Socio-legal Review, 2014; Equality and Human Rights Commission Research report 92, Caste in Britain: Experts’ Seminar and Stakeholders’ Workshop, 2014

Parliamentary considerations of slavery

On Tuesday 8 April, the Archbishop of Canterbury issued the Press Release Archbishop welcomes draft modern slavery bill which stated

“The Archbishop of Canterbury Justin Welby has welcomed the publication today of the report and draft Bill by the Parliamentary Joint Select Committee on Modern Slavery … We owe a debt of gratitude to the Committee’s members for their efforts, and I would like to extend particular thanks to my colleague Alastair Redfern, the Bishop of Derby, for his participation in the Committee’s work.

I very much hope that the Home Office, as it prepares to publish its own Bill on Modern Slavery, will take the Committee’s recommendations extremely seriously. These include putting the rights of victims at the heart of the Bill; including effective provisions to recognise the increased vulnerability of children; and a clause that would encourage quoted companies to do more to ensure that their supply chains are free from slave labour. The Home Office has been a leader in the field of tackling modern slavery, and the determination of their approach is notable.”

It is therefore useful to place these initiatives into their parliamentary context, and this post provides the some of the background and links that may be useful for future discussion of these issues.

“Committee Bill”

The Parliamentary Joint Committee on Modern Slavery published its Report, Draft Modern Slavery Billon 8 April, pages 5 to 40 of which contain a Bill which it refers to as the “Committee Bill” in order to distinguish it from the Government’s draft Bill, below.  The Committee Bill was produced as a revision to the Government Bill “to illustrate the ways in which [its] recommendations might be translated into legislation.”  The 14-member Joint Committee was appointed by the House of Commons on 9 January 2014 and by the House of Lords on 15 January 2014 to examine the Draft Modern Slavery Bill, published in December 2013, and to report to both Houses by 10 April.  Evidence considered by the Committee is reported here.

Draft Modern Slavery Bill[1]

On 16 December 2013, the Secretary of State for the Home Department (Theresa May): announced the establishment of a new Modern Slavery Unit in the Home Office, with the responsibility “for ensuring that we tackle this problem from every angle, whilst always keeping the plight of victims at the very heart of our policies and everything we do.” In addition, a White Paper including a draft Modern Slavery Bill, was published. The objective of the Bill is to “simplify legislation, toughen sentences for slave drivers, and enable the courts to restrict activity where individuals may be at risk. This will mean that more traffickers are pursued, disrupted and brought to justice. The Bill will also create an Anti-Slavery Commissioner who will galvanise law enforcement’s efforts to tackle modern slavery.” A Memorandum addresses issues arising under the European Convention on Human Rights (“ECHR”) in relation to the draft Modern Slavery Bill, and an Impact Assessment has been undertaken.

Slavery Bill 2013-14

Peter Bone MP’s Slavery Bill, introduced under the Ten Minute Rule, SO No 23, which received its first reading in the House of Commons 10 July 2013 has now been withdrawn.



[1] “A Draft Bill is published to enable consultation and pre-legislative scrutiny. After consultation and pre-legislative scrutiny has taken place, the Draft Bill may be introduced formally in House of Commons or the House of Lords. Most Draft Bills are examined either by select committees in the House of Commons or in the House of Lords or by a joint committee of both Houses of Parliament.”

Hungary’s registration of religious groups breaches Arts. 9 & 11 ECHR

In a case concerning Hungary’s new Church Act the Second Section ECtHR found by five votes to two (Spano and Raimondi JJ dissenting) that some of its effects had violated Article 11 (assembly and association) read in the light of Article 9 (thought, conscience and religion).

The facts

In Magyar Keresztény Mennonita Egyház and Ors v Hungary [2014] ECHR (Nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12) the applicants were a range of religious groups and individual members of those groups that had previously operated as communities registered by the competent court in conformity with Act no. IV of 1990 (“the Church Act 1990”): the Mennonites, various Congregationalist and Evangelical Christian groups, the Alliance of Hungarian Reformed Jewish Communities, the European Union for Progressive Judaism, the Buddhists and some others.

In December 2011 Parliament enacted Act no. CCVI of 2011 (“the Church Act 2011”) on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities. It came into force on 1 January 2012 and was subsequently amended, most recently in August and September 2013 [para 16]. As a result, apart from the recognised churches listed in the Schedule to the 2011 Act, all other religious communities previously registered as churches lost their status as churches and lost their state funding; but they could continue their activities as associations. If intending to continue as churches, religious communities were required to apply to Parliament for individual recognition [para 17].

The applicants complained that their deregistration under the 2011 Act and the discretionary re-registration violated Article 11 (assembly and association) read in light of Article 9 (thought, conscience and religion) ECHR. They also argued that the deregistrations had breached Article 14 (discrimination) read in conjunction with Articles 9 and 11 and that the loss of state subsidies contravened Article 1 of Protocol No. 1 (property).

The judgment

The Court found that the Government had not demonstrated that there were no other less drastic solutions to the problems of abuse of state subsidies by certain religious groups than to deregister the applicant communities [para 96]. The deregistration had therefore violated their rights under Articles 9 and 11.

It was undisputed that the interference had been “prescribed by law”: the Church Act 2011 [para 85]. The measure could also be considered to have the legitimate aim of preventing disorder and crime for the purpose of Article 11 by attempting to combat fraud by certain religious groups [para 86]. As to whether or not the measure had been “necessary in a democratic society”, while Article 9 and 11 required the state to ensure that religious communities were able to acquire legal capacity as entities under civil law [ara 90] there was no right for religious organisations to have any specific legal status [para 91].

That said, however, distinctions in the legal status granted to different religious communities should not portray some of them in an unfavourable light. In many countries, state recognition was the key to social reputation without which a religious community might be seen as “a suspicious sect” [para 92]. Therefore:

“The Court cannot overlook the risk that the adherent of a religion may feel no more than tolerated – but not welcome – if the State refuses to recognise and support his or her religious organisation, whilst extending the same to other denominations. This is so because the collective practice of religion in the form dictated by the tenets of that religion can be quintessential for the unhampered exercise of the right to freedom of religion. In the Court’s eyes, such a situation of perceived inferiority goes to the freedom of manifesting one’s religion” [ara 94].

Furthermore, it was inconsistent with the state’s duty of religious neutrality that religious groups should have to apply to Parliament and canvass political parties for their votes in order to obtain re-registration as churches and that they were treated differently from incorporated churches with regard to material benefits without any objective grounds for such treatment [para 102]. The Government had not given any reason why it was necessary to scrutinise afresh religious groups that were already active on the grounds that they might be dangerous to society, nor had it demonstrated any element of actual danger emanating from the applicant communities [para 104].

Article 9 did not give the applicants a right to state funding; however, subsidies that were granted to various religions in different ways called for “the strictest scrutiny” [para 106]. The withdrawal of benefits following the Church Act 2011 had only applied to certain denominations because they did not fulfill certain criteria in the new Act, notably the requirements as to the minimum membership and duration of their existence.

The European Commission for Democracy through Law (the Venice Commission) had published a report on the Church Act in which it concluded that it was the requirement for a religious entity to have existed as an association internationally for at least 100 years or in Hungary for at least 20 years was excessive. The Court agreed with the Commission’s findings. The state’s neutrality required that distinctions in recognition, partnership – for example, for outsourcing public-interest tasks – and subsidies should be based on ascertainable criteria,such as a community’s material capacity [para 109]. There were no objective grounds for the difference in treatment as regards the income-tax-based donations of one per cent, which were intended to support faith-based activities and to which only incorporated religious organisations were entitled [para 112].

The measures imposed by the Church Act 2011 had not been “necessary in a democratic society” and therefore violated Article 11 read in the light of Article 9. It was not necessary separately to examine the complaints under Article 14 read in conjunction with Article 9 and Article 11 or from the standpoint of Article 1 of Protocol No. 1 read alone or in conjunction with Article 14. Furthermore, the Court did not consider it necessary to examine separately the admissibility or the merits of the complaint under Article 6 § 1.

Just satisfaction under Article 41

The Court held by a majority that the finding of a violation constituted sufficient just satisfaction in respect of the claims of non-pecuniary damage of five of the individual applicants. Furthermore, the Court held by a majority that the remaining questions of the application of Article 41 were not ready for decision. It therefore reserved that question and invited the parties to notify the Court within six months of the date when the judgment became final of any agreement that they might reach.