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Law & Religion UK is intended as a forum for academically-rigorous exploration of the interactions between law and religion, together with the associated human rights issues. We welcome pertinent guest posts and comments on current developments that reflect the views and opinions of their respective authors and meet the General Conditions applying to the site. Those that do not meet these criteria or which are otherwise unidentifiable are unlikely to be published

Frank Cranmer and David Pocklington

 

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Religion and Law round-up – 21st December

“Participating” in abortion, marking time on humanist weddings, first same-sex marriage under Scots law – and a hitch in EU accession to the ECHR..

Abortion and conscientious objection

The big news of the week was that Greater Glasgow and Clyde Health Board won its appeal in the controversy over whether or not Mary Doogan and Connie Wood, labour ward coordinators at the Southern General Hospital and practising Roman Catholics, could claim conscientious objection under s 4 Abortion Act 1967 to having to supervise staff participating in abortions. Maria Strauss, an Associate at Farrer & Co, wrote a joint post on the case with Frank.

Humanist weddings in England and Wales?

The Sunday Times reported (£) that Number 10 was blocking proposals to provide for humanist marriages although the Lib Dems remained in favour. Understandably, the British Humanist Association was very disappointed indeed, not least because experience in Scotland (where celebrants are licensed rather than buildings) suggests that there is quite a strong demand for humanist wedding ceremonies.

On Thursday the Government published its response to the consultation: Marriages by non-religious belief organisations. In short, though ministers don’t seem to be against humanist marriages in principle, they reckon that the law in England and Wales on licensing buildings for the solemnisation of marriages is so complex that “it is necessary to carefully consider the legal and technical requirements concerning marriage ceremonies and registration and the range of relevant equality issues”. So they have asked the Law Commission to conduct “a broader review of the law concerning marriage ceremonies”. In short: nothing this side of the General Election.

The radical option (and in Frank’s view, at any rate, the sensible option) would be thoroughgoing reform along the lines of the law in Scotland and Northern Ireland – but somehow we can’t see that happening.

Scottish Episcopal clergy and same-sex marriage

On Monday we posted on the Guidance on the Marriage and Civil Partnership (Scotland) Act 2014 issued by the College of Bishops of the Scottish Episcopal Church: from legislation in Scotland will permit same-sex marriage ceremonies to take place after 31 December 2014. The document prompted strong condemnation in relation to its uncompromising approach and apparent disregard for earlier conversations within the Church. This resulted in an open letter to the College of Bishops, signed by over 50 clergy and lay readers, which concluded with the comment:

“some of us are now uncomfortable about solemnizing marriages at all until such time as all can be treated equally, and all of us will continue to feel morally compromised in our ministries, and wish to make clear our continuing commitment to affirm and support all people in our church, and to recognised and rejoice in all marriages, of whatever sexual orientation, as true signs of the love of God in Christ.”

A week of “firsts” . . .

 . . . Douglas Pretsell and Peter Gloster followed by Elizabeth Lane.

The 15 minutes of fame for the first couple came at one minute past midnight UK time (11.01 am Australian Eastern Daylight Time) in the British Consulate in Melbourne, Australia, when they became the first couple to become married under the Marriage and Civil Partnership (Scotland) 2014, here, taking advantage of the 11-hour time difference between Australia and Scotland.

More familiar to readers will be the Revd Elizabeth Lane, whose appointment to the Suffragan See of Stockport in the Diocese of Chester was announced by Downing Street on 17 December. However, we still await the appointment of the first openly-gay bishop in the CofE.

The right to die?

On Tuesday the BBC reported that Jane Nicklinson, Tony Nicklinson’s widow, had formally lodged an application with the ECtHR in her own right and on behalf of her late husband, arguing that the UK has violated their human rights because MPs have not debated assisted dying.

Jehovah’s Witnesses, the Charity Commission and judicial review

On UKHRB David Hart QC reports that Dove J has decided that the Administrative Court has no jurisdiction to review the Charity Commission’s decision to launch an inquiry and make a production order concerning the Jehovah’s Witnesses charity because the Charities Act 2011 provides appropriate statutory remedies that the charity should pursue first. The Charity Commission’s decision arose from concerns about child protection issues in two JW congregations.

EU accession to the ECHR hits a snag

Under the Treaty of Lisbon it was agreed that the EU corporately would accede to the ECHR. However, the process of accession seems to have been derailed by the Court of Justice of the European Union (not to be confused with the ECtHR – but you wouldn’t, would you).

In Opinion 2/13 [2014] the Grand Chamber has ruled that the draft agreement on EU accession to the Convention is incompatible with EU law for various reasons:

  • It does not take account of the specific characteristics of EU law;
  • it goes against the CJEU’s previous ruling in Stefano Melloni v Ministerio Fiscal [2013] EUECJ C-399/11 that states parties cannot have higher standards than those contained in the EU Charter of Rights;
  • it does not provide for the application of the rule of “mutual trust” in Justice and Home Affairs matters; and
  • it fails to rule out the possibility that national courts might seek opinions from the ECtHR (under Protocol 16 to the Convention) on issues of European Union law before seeking the opinion of the CJEU.

So where next? For an interesting and detailed analysis of the implications, see the analysis by Steve Peers of Essex University Law School: The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection.

The Prime Minister and Judaism

This week the PM held a Chanukah reception at No 10. In his speech, he reiterated his commitment to upholding Jewish religious practices:

“You are in many ways the model of how to integrate successfully into a country, and the pledge I make as Prime Minister is those aspects of religion, such as shechita, are always safe while I am your Prime Minister.”

No doubt the same goes for halal slaughter: but the Daily Telegraph reports that Environment minister George Eustice has given back-benchers “the clearest signal yet that the Government will introduce compulsory labelling of halal or kosher products” .

Quick Links

2014

As the year draws to its close, we would like to remind readers that our End of Year Law & Religion Quiz will appear on Christmas Eve and the Round-up of 2014 will be posted on 31 December.

And finally … Pope Francis, animals and paradise

Last week we made a passing reference to the iBenedictine post, Be More Dog: some extremely acute canine musings on an opinion allegedly voiced by Pope Francis that pets go to paradise. But it now appears that Pope Francis said no such thing: the news stories were apparently based on a misreading of remarks he made at his weekly general audience at the Vatican on 26 November and on a comment that a previous Pope did make several decades ago. According to Reuters:

“Pope Paul VI, who died in 1978, once said, reportedly while comforting a child whose dog had died, ‘One day we will see our animals in the eternity of Christ.’ ‘There is a fundamental rule in journalism. That is double-checking, and in this case it was not done,’ the Vatican’s deputy spokesman, Father Ciro Benedettini, said on Saturday, when asked about how the media ran with the story.”

Not a lot to do with law & religion – nor, as it turns out, with Pope Francis.

And the difference between tenor clef and Greek? – for those who didn’t Google it – “Some conductors can read Greek”

And a happy and peaceful Christmas to all our readers…

Does “caste” fall within the definition of “race” in s 9 Equality Act 2010?

Chandhok & Anor v Tirkey (Race Discrimination) [2014] UKEAT 0190 14 1912 was an appeal against the refusal of Employment Judge Sigsworth to strike out some parts of a claim by Ms Tirkey. She had claimed that the Chandoks had treated her badly and in a demeaning manner and initially sought “compensation for direct or indirect race discrimination and harassment including injury to feelings” and “compensation for discrimination on the grounds of religion or belief, including injury to feelings…”. She then claimed (by amendment) that her treatment was in part because of her low status which was “infected with considerations of caste”.

The Chandoks applied to strike out this amendment on the following grounds:

Lords Spiritual (Women) Bill – analysis

The Lords Spiritual (Women) Bill was introduced to the House of Commons on 18 December 2014 and will begin its progress through Parliamentary when the House returns from its Christmas recess on 5 January[1]. The intention is that, provided the Bill is granted Royal Assent before Parliament is dissolved on 30 March 2015, the Act will come into force on “the day Parliament first meets following the first parliamentary general election after this Act is passed”: clause 2(2). Parliament’s first meeting also triggers the commencement of the 10-year “sunset provision”: clause 1(1)(a). Continue reading

Lords Spiritual (Women) Bill published

In a written statement, HCWS140, Sam Gyimah (Minister for the Constitution) announced that today, 18 December, the Government is introducing the Lords Spiritual (Women) Bill to the House of Commons:

“The Bill follows the legislation permitting women to be ordained bishops. That was completed by the General Synod of the Church of England on 17 November. With the way clear for the first women to be appointed, it is right that those women should be amongst the Bishops who occupy seats in the House of Lords (known as Lords Spiritual). This Bill is intended to allow that to happen sooner than it would under the existing rules.

Currently, the Archbishops of Canterbury and York and the Bishops of Durham, London and Winchester automatically take seats in the House of Lords. The remaining 21 seats are occupied by Bishops in order of seniority (length of service). Under the current system, it would be many years before women bishops were represented in the Lords.

The Government’s Bill, which is supported by the Church of England, proposes a modification of this rule for the next ten years, so that if a female bishop is available when a Lords Spiritual seat becomes vacant, [she] will automatically be appointed to the House of Lords. If no female bishop is available, the vacancy would be filled by the next most senior male bishop, as currently happens.”

A copy of the Bill may be found here, the explanatory notes here, and a copy of the Church House Press Release here. An analysis of the Bill’s provisions will be made in a subsequent post.

Abortion, conscientious objection and the UK Supreme Court: Greater Glasgow Health Board v Doogan & Anor

The following has been written jointly by Maria Strauss, an Associate at Farrer & Co, and Frank Cranmer

A post last April reported the judgment of the Inner House in Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36. Yesterday the Supreme Court allowed the Health Board’s appeal and set aside the Inner House’s declarator.

The background

Mary Doogan and Connie Wood were labour ward coordinators at the Southern General Hospital. Both are practising Roman Catholics; and when they started working in the labour ward they had claimed conscientious objection to participating in abortions, pursuant to s 4 of the Abortion Act 1967. That was accepted and, as a result, they took no part in the treatment of certain patients in the labour ward. Continue reading

Government stalls on humanist marriages in England & Wales

The Government has today published its response on Marriages by non-religious belief organisations. The nub of the response is as follows:

  • The majority of respondents to the consultation are in favour of legally valid marriage ceremonies for those with non-religious beliefs, and allowing these marriages to take place in unrestricted locations, including outdoors [57].
  • But there are a number of complex issues raised which have implications for marriage solemnization more broadly [58] because, unlike in Scotland (where individual celebrants are registered to solemnize marriages), in England and Wales the law is based on registration of buildings [59].
  • Allowing non-religious belief marriages could be considered to advance equality of opportunity between couples with a religious belief who those holding a non-religious belief [60].
  • But the Government cannot think of an option that would not create a further difference in treatment within marriage law and provide for complete equality of treatment between those with religious beliefs, those with humanist or other non-religious belief, and couples more generally [60].
  • Restricting ceremonies to buildings registered by belief organisations would provide parity with the majority of religious groups; but humanists do not have buildings of their own to register [61].
  • Allowing belief marriages in unrestricted locations might be seen as unfair by couples who are neither religious nor humanist but who also may want a greater choice of marriage venues [63].
  • In making any changes, the Government would have to guard rigorously against increasing the risk of forced and sham marriages [64].

Continue reading

Bishop of Stockport announced

This morning, the Prime Minister’s Office published the following Press Release

“Suffragan See of Stockport: Elizabeth Jane Holden Lane nomination approved

The Queen has approved the nomination of Elizabeth Lane for election as Suffragan See of Stockport in the Diocese of Chester. Continue reading