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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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Same sex marriage statistics: 2014, Q1 & Q2

On 21 August, the Office of National Statistics, (ONS), released the first provisional statistics for same sex marriage in England and Wales between 29th March, the earlier date on which these marriages could be solemnized under the Marriage (Same Sex Couples) Act 2013, and 30th June 2014, which marks the end of Quarter 2.  The ONS release provides the following information:

  • Number of marriages of same sex couples by month: A total of 1,409 marriages were formed between same sex couples in the period 29 March to 30 June 2014. Of these, 56% of marriages were to female couples (796 marriages) while 44% were to male couples (613 marriages). Over the three day period from 29 March to 31 March 2014 there were 95 marriages of same sex couples. There were 351 marriages in April, 465 in May and 498 in June.
  • Average age at marriage for men and women: The average (mean) age at marriage for women was 37.0 years, slightly lower than the male mean age of 38.6 years.  There were more women than men marrying at younger ages, particularly at ages 25 to 29 and 30 to 34 where 63% and 60% of those marrying were female. From age 55 slightly more men than women married with the exception of age 65 and over where equal numbers of men and women married. The greatest number of men and women marrying were aged 30 to 34 with 220 and 330 marriages respectively.
  • Marital status before marriage: The majority of men and women marrying had never been married or in a civil partnership before (91% of males and 79% of females). Women were more likely than men to have previously been in a civil partnership or marriage that ended in dissolution or divorce (9% of men, 20% of women). A very small percentage of marriages took place for men and women whose previous marriage or civil partnership had ended with the death of their partner (0.5% of men and 0.9% of women).

Comment

As lawyers rather than statisticians, we are not in a position to interpret these early figures for same sex marriage, or compare them with the uptake of civil partnership after this had been introduced.  However, the basic data indicate:

  • The greatest number entering same sex marriage and civil partnerships is within the age range 30 to 34 years old;
  • Over the first quarter following the introduction of civil partnerships, two thirds (66%) of partnerships were between males.  In contrast, 44% of marriages to same sex couples between 29 March and 30 June 2014 were between males;
  • The total number of same sex marriages to date (1,409) is slightly greater than the number of civil partnerships formed between 21 and 23 December 2005, (1,227);
  • The number of same sex marriages is increasing steadily month by month.

With regard to the uptake of same sex marriage, the ONS suggests

“[t]he early uptake of marriages of same sex couples is lower than the uptake of civil partnerships, possibly because before the introduction of civil partnerships there was no other option for same sex couples to formalise their relationships.”

However, it could be argued that although there is now the possibility of same sex marriage in England and Wales, latest ONS data indicate that up to the end of 2012, a total of 60,454 civil partnerships had been formed, and until 10 December 2014 none of these nor those formed subsequently will be able to be converted into a same sex marriage. We therefore await the statistics for Q4 with interest.

Recent consistory court judgments: reordering, extensions and building works

Re St John the Baptist Burford [2014] Oxford Cons Ct, McGregor Ch

The vicar, one of the churchwardens and the chairman of the PCC’s fabric committee petitioned the court for a faculty to authorise works associated with the extension of the church hall, (Warwick Hall), including: removal of two trees; relocation of memorials; removal and rebuilding gate post; alterations to churchyard wall; resurfacing of path. They subsequently applied to amend the petition to omit “alterations to churchyard wall” from the Schedule of works or proposals.  This was significant since a number of the objections to the scheme related to changes to the wall: the petitioners contended that although they still wished to carry out the works to the wall, these are not subject to the jurisdiction of the court: it is not situated on land that forms part of the churchyard or other curtilage of the church, but on land that belongs exclusively to the parochial church council as the owners of Warwick Hall.

The Chancellor confirmed [at para. 35] that:

“Unconsecrated land situated wholly outside the boundary of a churchyard (and not otherwise within the curtilage of a church is not within the jurisdiction of the consistory court even if it is a church body such as a parochial church council who owns the land in question and who intends to carry out works on that land[1]. Accordingly, if the boundary wall is situated wholly or partly within the churchyard, the wall (or at least part of it) is subject to the faculty jurisdiction. If it is situated wholly outside the churchyard it is not subject to the faculty jurisdiction.

He considered the evidence relating to the location of the boundary, [paras. 39 to 64], and held: the boundary wall is not within this court’s jurisdiction and that the works that the Petitioners propose to carry out to it do not require the authority of a faculty; allowed Petitioners’ application to omit “alterations to churchyard wall” from the Petition; and observed that the issues raised by the Parties Opponent set out in paras. 22 to 25 above fall away, [paras. 62 to 64].

With regard to the remaining matters[2], the Chancellor stated that the test to be applied was not that laid down in Re St. Alkmund Duffield [2001] (which applied to listed buildings) but the test set out by Lord Penzance in Peek v Trower [1881], viz.

 “All presumption is to be made in favour of things as they stand.  If you and others propose to alter them, the burden is cast upon you to shew that you will make things better than they are – that the church will be more convenient, more fit for the accommodation of the parishioners who worship there, more suitable, more appropriate, or more adequate to its purpose than it was before; and if you cannot shew this to the court, at least shew the court that a majority of those for whose worship the church exists desires the alterations which you propose.”

The Chancellor considered: the application of the test [paras. 84 to 91]; aspects relating to planning permission, [paras 92 to 95]; issues associated with the grand of a Licence, [paras 96 to 99]; and the possibility of restriction on the use of the hall, [paras. 100 and 101]. In summary, he was satisfied that the Petitioners had discharged the burden on them, as set out in Peek v Trower, to establish that they should be permitted to make the proposed changes to the churchyard and that there are no other factors which should result in the court declining to exercise its discretion in their favour.  Faculty granted, subject to conditions.

Re St Mary the Virgin South Hayling [2014] Portsmouth Cons Ct, Waller Ch

The churchwardens of St Mary the Virgin, South Hayling sought a Faculty for the construction of an octagonal extension to the North side of the church and for related works. The construction of the extension would extend over the site of several graves which are currently marked with headstones and kerbsets, and the petition included a request for a Faculty for the removal of the headstones and kerbsets concerned, subject to relocation or the provision of substitute memorials. The families of some of those interred at the site of the proposed extension were understandably concerned about the proposed works and expressed their opposition to the plans.  Although the petition was formally unopposed, in view of the nature and impact of the proposed works and letters of opposition which had been received, the Chancellor concluded that it was appropriate for his decision and reasons to be set out in a formal judgment.

Options for relocation and for replacement of the memorials had been discussed with those concerned and the architect advised that with the building methods proposed the excavations will not reach the depth of any of the coffins beneath the site of the extension, even in the case of a double depth grave.  Care would be taken to ensure that no disturbance will take place.  The option of exhumation and re-interment was offered and is not dependent on remains being found or disturbed.

The church is Grade II* listed dating from the 13th –14th centuries and includes significant internal restoration, especially in the late 19th century.  Where external repairs have been necessary, efforts have been made to retain the essentially mediaeval appearance of the exterior.  The proposed extension is the second phase of a redevelopment project and has been planned to provide a meeting area, vestry facilities, refreshment area and toilet facilities on the north side of the church adjoining and accessed through the north door.

The Chancellor considered that the petitioners had established a clear need for the proposed extension and the facilities which it will provide. The facilities available in the church building and its immediate surrounds are wholly inadequate for the current and likely future use of the church: the needs of the clergy, congregation and others using the building cannot be met by the existing facilities either on the site of the church or in the hall across the road. The extension would be a significant addition to the exterior of the building, but he was satisfied that the size and design of the new building is in keeping with the existing building and the exterior appearance.

Whilst it was a matter of regret that established grave sites and markers will be affected by the erection of the new building, the Chancellor reached the conclusion that the proposed extension is necessary if the mission and functioning of the church is to be maintained and develop: the benefits for the church and for all who use it outweigh the adverse impact on the grave sites. He concluded that the petition should be granted and that a Faculty should issue in the terms sought. However, it is important that the feelings of the families affected are respected and steps should continue to be taken to offer suitable alternatives to them and to minimise the impact on the graves concerned, and the Faculty was subject to the following conditions:

  • the opportunity for exhumation and re-interment of the remains of any person interred beneath the site of the proposed extension should be offered to the close family of any such person; and
  • should any human remains be disturbed they are to be reverently and discreetly re-interred.

The offer of alternative options for relocation or replacement of grave markers or memorials is provided for in the terms of the Faculty

Re St Thomas of Canterbury Mumby [2014] Lincoln Cons Ct, Bishop Ch

Problems of draughts and the accumulation of leaves in the porch to the south door of the church form the basis of the Statement of Needs for the fitting of a non-reflective glass doors, set back from the front of the porch as required by the condition of planning permission, but nevertheless in front of the 13th century doorway.  However, these issues were secondary to the aesthetic merits of the porch, which had been the subject of enthusiastic comment of Pevsner and Tennyson, and were clearly set out in the English Heritage opinion of 19 December 2011:

“the very fine early 13th century inner doorway has shafted reveals, stiff leaf capitals, dog tooth decorative detailing and a richly moulded head. It is of a particularly high architectural and historic interest and makes a key contribution to the significance of the church. There are important views of the inner doorway from approaches to the south porch”.

The Chancellor set out the historical context in detail, [paras. 3 to 9], and stated his belief that:

“it is important to have in mind in deciding this application, the importance of this south facing door and therefore also the decorative motifs around it, to the many generations of the Christian people who will have come to this Church over many years to worship and pursue their secular business. Even today, as one walks up the pathway towards the south door, the design of the arcade around the door continues to focus the eye from a general view of the church and the surrounding churchyard, and narrows down our focus to a single point of clarity that takes us through the door and into the house of God in Mumby.”

The Chancellor review the petition under the criteria set out be the Court of Arches’ in Re Duffield: St Alkmund [2013] 2 WLR 854] and stated:

 “if glazed doors were erected in the porch, even in the position required by the planning permission, there would be serious harm to the significance of this church as a place of special architectural and historic interest. It is inevitable in my judgement that however ‘non-reflective’ the glass doors will be, there will be a significant reduction, and possibly an elimination, of any view of the decorative arcade above the doorway as people walk up the path into the church . . . any glazed doors in the porch will disrupt the significant southern elevation of the church as it is approached up the footpath. The link between the churchyard and the church through this doorway is an important part of the architectural and historic significance of the church, and this would be seriously harmed, if not lost altogether, if the glazed doors were erected.”

Having considered the needs which the Applicants are seeking to address, the Chancellor was not satisfied that their justification for the proposals outweighed the serious harm that would be done to this building by the erection of the glass doors. He was also not persuaded that the 13th century doorway needs any further protection than that which it currently receives from the 19th century porch.

He made no judgement about the alternatives put forward by English Heritage, except to recognise that a glass partition that extended too far into the nave would be disruptive to the current open and uncluttered feel of the nave, but suggested that further thought could be given to the practicalities of such options, such as those relating to funeral services.  However, there was no requirement adjudication on these alternatives.  Faculty refused.

Re All Saints Winterton [2014] Lincoln Cons Ct, Bishop Ch

As part of an extensive reordering for which a faculty had been granted, (Faculty 3808), it was intended to move a medieval font to the current location of an Edwardian font in the church [3].  The octagonal 13th century font was assumed to have been discarded in the 1650s during the Commonwealth but had been in use since 1952. The Victorian Society objected to these proposals in general, and to the burial[4] of the Edwardian font in particular.  The Chancellor considered canonical and other provisions, none of which prevents there being more than font in a church, although guidance within the authorities differ: in Re St Barnabas Kensington 1991 Fam 1 Chancellor Newsom QC held that there was no objection to there being two fonts – a baptismal pool and a ‘conventional’ font for baptism by affusion for infants – although the contrary view was put forward in Re St Nicholas Gosforth 1998 1(5) Ecc LJ 4.  With regard to the liturgical norm that there should be only one font at which baptisms take place, an article by Bishop David Stancliffe was apposite[5].

The Chancellor indicated that a proposal might be worked up to place the Edwardian font in another location in the church, where it would not be used as a font but could ‘co-exist peacefully’ with the medieval font.  If this was not practical or desired, then new plans could be placed before him for the removal of the font from the church to store or to another church. As a consequence and using his powers under the paragraph 19.3 (1)(a) Faculty Jurisdiction Rules 2013, the Chancellor directed that in respect of Faculty 3808, that part of the Schedule which states “and Edwardian font to be buried within the church” shall be deleted from the Schedule of works authorised.

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[1] Section 7(1) of the Faculty Jurisdiction Measure 1964

[2] i.e. the removal of two trees; relocation of memorials; removal and rebuilding of gate post; resurfacing of path.

[3] At the time of the Restoration, a new font was commissioned in 1663 and this font was used until 1903 when the Edwardian font was donated. The 17th century font was “given away”.

[4] Regarding the ritual burial of fonts, see: Douglas, Mark (2003): The archaeology of memory: an investigation into the links between collective memory and the architecture of the parish church in late medieval Yorkshire, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/1260/1/1260.pdf: also Pounds, N. J. G. (1994) The Culture of the English People: Iron Age to the Industrial Revolution. Cambridge: Cambridge University Press.  However, neither was apparently considered by the court.

[5] D Stancliffe, Baptism and Fonts [1994] 3 Ecc LJ (14) 141-148.

Case-law on religion and employment

Not so much a post as a plea for help… 

As some readers will be aware, I am the current Secretary of the Churches’ Legislation Advisory Service; and one of my duties is to keep my members up to date with legal and policy developments which might affect them. Some considerable time ago I was asked by one of the member Churches if I could produce a note on the case-law relating to clergy employment.

I did as I was asked; and since then I’ve revised it regularly to take account of new decisions and new areas as the occasion has demanded. The current version of the paper addresses the legislation and recent case law relating to ministers of religion in the Church of England, the Church of Scotland and other religious organisations, the position of lay employees, volunteers and interns, entitlement to the National Minimum Wage, the current exceptions relating to employment by religious organisations and vicarious liability.

Employment law is in a constant state of development; and the result of regular revision is that what began as a fairly short paper is now the length of a fairly substantial journal article. Yesterday I posted the latest version on the public part of the CLAS website – and since I’m not a specialist employment lawyer I should be very grateful indeed for any comments/corrections/criticisms from anyone out there who is.

Frank Cranmer

Civil partnership conversion to same-sex marriage: religious content

In an earlier post we reported that concerns had been raised by Baroness Thornton, (Lab), regarding the bureaucratic nature of the process by which civil partnerships would be converted to a same sex marriage, and the requirement that these could only be carried out by a senior registrar.  As a consequence, the draft Statutory Instruments[1] which were due to be debated on 29 July, were withdrawn with an undertaking that revised versions would be tabled for debate in the autumn.  In response to a subsequent question by Lord Collins of Highbury (Lab) [30 July 2014 Vol 755 Column 1583], Baroness Northover said [emphasis added]

We are indeed determined that the regulations will be in place by 10 December so that civil partnerships can be converted to marriages. As the noble Lord will remember, in the consultation prior to the Act, the emphasis that came through from people feeding in their views on this was that they wanted to make sure that their civil partnership was properly marked and could be translated into an equal marriage. They wanted that to be as straightforward as possible with as few hurdles as possible. That was what was built into the Bill.

As the noble Lord will know, since then some people have felt that they want to mark that transition. He will also know that the Bill and regulations allow ceremonies to be associated, but they want to make that link closer. We are determined to try to make sure that everything that people want in this situation can be done within the complexity that he is familiar with within the Bill. Indeed, we are determined to deliver this by 10 December, and we are happy to discuss those draft regulations.”

On 11th August 2014, Lord Wallace of Saltaire (LD) gave a Written Answer to questions on marriage ceremonies asked by Lord Lester of Herne Hill: whether the government will ensure that registered civil partners wishing to undergo a marriage ceremony with religious elements receive equal treatment as same sex couples who are not registered civil partners and wish to marry in the same way; and why the Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014 bans the use of religious services at conversion.  Lord Wallace stated [emphasis added]:

The Government is committed to ensuring that couples wishing to convert their civil partnership in to a marriage can do so from 10 December 2014. The draft Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014, which were laid in the House on 3rd July 2014, provide for a simple conversion process, which is not, and was never envisaged to be, a marriage ceremony . . . . The process was conceived in line with responses from those in civil partnerships to the public consultation in 2012, which called for a simple, straightforward and low cost way for couples to convert their civil partnership into a marriage . . . . the conversion process was not envisaged to be a process which would replicate a marriage ceremony, whether religious or secular, but was rather intended to be an easy administrative process by which couples converted their civil partnerships and had these recognised as marriages from the date the civil partnership was formed.

Couples who did want to celebrate the conversion with family and friends could choose to hold some form of non-statutory celebratory ceremony following the conversion itself, if they so wished. We continue to listen to the views expressed by stakeholders during the implementation of the Act. We have heard views articulated by stakeholders in recent weeks raising concerns with the conversion process as set out in the draft regulations as laid and in particular regarding the possibility of incorporating religious elements within conversions. We will consider these views and whether suitable options exist for addressing them within the legal framework established by the Act over the summer.”

Comment

From the legal point of view, the conversion process is essentially an interim measure directed at  couples who entered into civil partnerships between its introduction in 2005 and the availability of same-sex marriage in 2014.  Nevertheless, within this period a significant number of civil partnerships have been formed: latest data from ONS indicate that since the Civil Partnership Act 2004 came into force in December 2005, there were 60,454 civil partnerships up to the end of 2012, i.e. 120,908 civil partners, an order of magnitude greater than the 11,000 to 22,000 civil partners estimated in the regulatory impact assessment.  The ONS is currently examining the trends in civil partnerships, how marriages to same sex couples will change the statistics, and how this might best be reported, here and here.

With regard to the conversion process, government priorities appear to be: meeting the 10 December 2014 deadline; and reflecting the responses in its 2012 consultation.  The delay caused by the withdrawal of the draft statutory instrument, and the potential complications associated with the introduction of a religious element are likely to limit the changes that may be introduced at this late stage. Furthermore, the potentially large number of couples wishing to convert their civil partnerships to same sex marriages may also preclude changing the proposed procedure unless present resources are augmented[2].

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[1] Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations and the Draft Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) (No. 2) Order 2014.

[2] There were ~183,000 civil marriage ceremonies in 2012, ONS data.

Religion and the Canadian Oath of Allegiance

In February last year, we considered the application of the UK Succession to the Crown Bill 2013 [1] to Canada through Bill C-53, which had been introduced into the Canadian House of Commons and which now forms the Canadian Succession to the Throne Act, 2013. Sensitivity to the role of the Monarch in Canada is evident inter alia from challenges in the courts to the 2013 Act, here and here, and in the more recent case McAteer v. Canada (Attorney General), 2014 ONCA 578 in which four individuals challenged the Oath of Allegiance from different perspectives.

Permanent residents of Canada over 14 years old who wish to become Canadian citizens are required to swear an oath or make an affirmation. Subject to limited discretionary exceptions, a certificate of citizenship issued by the Minister of Citizenship and Immigration does not become effective until the oath is taken, as follows:

“I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen”

The appellants objected to the italicized part of the citizenship oath on a number of grounds:

  • Mr Charles Roach, a committed republican, believed that to swear fealty to a hereditary monarch would violate his belief in the equality of human beings and his opposition to racial hierarchies. He initiated the present application, but had died in October 2012.
  • Mr Michael McAteer, also a committed republican, deposed that “taking an oath of allegiance to a hereditary monarch who lives abroad would violate [his] conscience, be a betrayal of [his] republican heritage and impede [his] activities in support of ending the monarchy in Canada.” He further deposed that taking an oath to the Queen perpetuates a class system and is anachronistic, discriminatory and not in keeping with his beliefs of egalitarianism and democracy.
  • Mr Dror Bar-Natan similarly stated that the oath would violate his conscience because it is a symbol of a class system.
  • Ms Simone Topey, by contrast, is a Rastafarian who regards the Queen as the head of “Babylon”: degenerate Western society that is in opposition to “Zion”. She deposed that it would violate her religious beliefs to take any kind of oath to the Queen.  She further deposed that if she took the oath she would feel bound to refrain from participating in anti-monarchist movements.
  • Mr Howard Gomberg, a former plaintiff in these proceedings, had given evidence that taking an oath to any human being is contrary to his conception of Judaism.

Dismissing the appeal and allowing the cross-appeal, Ontario Court of Appeal Justice Karen Weiler held as follows:

  • “The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Supreme Court of Canada leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of the Commons and the Senate under The Constitution Act, 1867. In that oath, the reference to the Queen is symbolic of the Canadian form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning” [para 6].
  • The appellants’ incorrect interpretation of the meaning of the oath cannot be used as the basis for a finding of unconstitutionality. The approach to analyzing claims under s. 2(b) was set out by the Supreme Court in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, and requires the court to determine: 1) whether what is in issue is expression; 2) whether the purpose is to compel expression; and 3) whether there is an effect on expression that warrants constitutional disapprobation. Applying this approach, there is no issue that the oath is expression. I hold that the purpose of the oath is not to compel expression but to obtain a commitment to our form of government from those wishing to become Canadian citizens. Although the oath has an effect on the appellants’ freedom of expression, constitutional disapprobation is not warranted. Thus, there is no violation of the appellants’ freedom of expression. In the alternative, if there is a violation or the appellants’ right to freedom of expression, it is justified under s. 1 of the Charter.There is no violation of the appellants’ right to freedom of religion and freedom of conscience because the oath is secular and is not an oath to the Queen in her personal capacity but to our form of government of which the Queen is a symbol. Nor is the oath a violation of the appellants’ equality rights when the correct approach to statutory interpretation is applied” [para 7].

Comment

The issues raised by the parties on this appeal were:

  • whether the oath violates freedom of expression, freedom of conscience or religion or the right to equality under sections 2(b), 2(a) and 15(1) of the Charter of Rights and Freedoms; and
  • if it did violate the Charter, were these saved under section 1?

With regard to religious freedom, the court noted that the oath dated back to

“… the historical compromise of the Quebec Act … [1774 14 Geo III c 83] in which the British Crown introduced a secular oath to the Queen to secure the loyalty of the French Canadians by recognizing their freedom to practise their religion. The intent behind the introduction of a secular oath was to create a religious-neutral way of permitting individuals to become citizens. In so doing, the new oath permitted French Canadians to vote and participate in public life in a way that was previously precluded because of the religious nature of the oath that had existed until that time” [para 103].

In Roach v. Canada ( Minister of State for Multiculturalism and Citizenship) ( C.A.) [1994] 2 F.C. 406 Linden JA stated that:

“Parliament’s purpose in framing the oath or affirmation was to require a statement of loyalty to Canada’s head of state and its institutions, not to interfere with religious freedom. There is no mention in our Constitution nor in this oath of the Queen in her capacity as Head of the Church of England. The oath requires no statement of allegiance to Anglicanism nor to the Queen in relation to her role in the Church of England. Indeed, the Anglican Church of Canada is governed, not by the Queen, but by an independent Synod established in Canada. Therefore, the purpose of the oath or affirmation is not to interfere with the guarantee of freedom of religion, because its purpose was not in any way to insist upon loyalty to the Anglican Church”.  

Summarizing the position in the instant case, Weiler JA held that:

“Purposively interpreted, the oath exemplifies the very principle s. 2(a) of the Charter was intended to foster. This conclusion is equally applicable to both the appellants’ freedom of religion claims and their freedom of conscience claims [para 119].

The oath to the Queen of Canada does not violate the appellants’ right to freedom of religion and freedom of conscience because it is secular; it is not an oath to the Queen as an individual but to our form of government of which the Queen is a symbol” [para 120].

She noted that a Charter challenge to the religious requirements for the office of the Queen [ie Queen of Canada] was scheduled to be argued before the court in August 2014:

“However, as this issue was not addressed in the case before us, I will limit my s. 2(a) (and s. 15) analysis on this aspect of the appellants’ argument to examining whether the religious requirement for the office of the Queen renders the reference to the Queen in the oath unconstitutional” [para 107].

Which was, of course, entirely right and proper – and we await the outcome of the further case on the “religious requirements for the office of the Queen” with something approaching baited breath. But as we do so, we bear in mind that in Teskey v. Canada (Attorney General), 2013 ONSC 5046 Hackland RSJ was

“… in respectful agreement with this court’s decision in O’Donohue, affirmed by the Court of Appeal which held that the rules of succession and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny and are not justiciable in the sense that they are beyond the review jurisdiction of this court” [para 15].

In short, in Canada there does not appear to be a human right to be Queen… yet.

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[1] As it then was. Royal Assent, 25 April 2013.

Religion and law round up – 17th August

Not all that much that’s specifically religious this week, but there was some interesting legal stuff… 

Lord Neuberger on the ECtHR, the judicial process – and sausages  

The Supreme Court has released the text of two fascinating speeches which its President delivered recently at conferences in Sydney and Victoria.

In The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience Lord Neuberger makes various important points on the relationship between the UK courts and Strasbourg:

“Save where we feel that Strasbourg has misunderstood or misappreciated our common law system, we UK judges have … sometimes been too ready to assume that a decision, even a single decision of a section of that court, represents the law according to Strasbourg, and accordingly to follow it. That approach is attributable to our common law attitude to precedent … I think we may sometimes have been too ready to treat Strasbourg court decisions as if they were determinations by a UK court whose decisions were binding on us” [para 35].

That said, however:

“a UK judge … considering not following Strasbourg jurisprudence …  should bear in mind that one of the purposes of introducing the [Human Rights Act 1998] was to prevent litigants whose human rights were not recognised domestically having to go to Strasbourg to vindicate their rights against the UK government. If UK judges are too ready to depart from Strasbourg, we get back where we were before the HRA came into force” [para 37].

“… the absence of a written constitution may not always prevent us from relying on our fundamental constitutional conventions … In [R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] 1 WLR 324] we had to consider the suggestion that, in order to see if a statute conflicted with those laws, the courts might have to assess the quality of the debate in Parliament on the statute. In a judgment I wrote jointly with Jonathan Mance, the Supreme Court made it clear that it would have reservations about following any such suggestion in the light of section 9 of the Bill of Rights and the well-established principle that the courts do not poke their nose into parliamentary business, and, by the same token, politicians do not get involved with the courts” [para 38].

He suggests that the fact that the ECtHR is an international court means that its decisions “have to apply across thirty-odd member states with very different traditions and institutions – from Sweden to Turkey, from Luxembourg to Russia” and that “there has to be a degree of give and take” – which means that on some topics, Strasbourg will accord a margin of appreciation to member states [para 39].

He acknowledged that “unelected” judges, especially foreign ones, were perceived to have been given powers which they had not previously enjoyed. That perception, “coupled with the distaste in some political quarters for all things European”, had made the Convention “something of a whipping boy for some politicians and newspapers”. However, though there were decisions of the Strasbourg court with which he disagreed that was scarcely surprising: “indeed, it would be astonishing if it were otherwise” [para 41]. And he felt that very few of its decisions could fairly be said to be misconceived.

Though it was valuable for judges to be given a substantial role supported by the rule of law in protecting individuals against the state, nevertheless:

“I strongly believe that judges should not be anxious to increase their powers, and indeed should not even be enthusiastic about using any powers they have. A degree of judicial self-restraint is always appropriate” [para 42].

In conclusion:

“My colleague Jonathan Sumption has suggested that the Strasbourg court suffers from a democratic deficit, and this undoubtedly has some force. However, the development of pan-European law after centuries, indeed millennia, of separate development and frequent wars, and with different political and legal traditions, and different historical experiences and different traditions, was never going to be easy. It is therefore inevitable that the Convention, like the EU, would be a controversial topic in the UK. Watch this space” [para 43].

Which we certainly shall.

In Sausages and the Judicial Process: the Limits of Transparency he takes a perceptive and sometimes rather wry look at judge-made law. We shan’t summarise his speech here; but it is well worth reading, not least because it confirms our suspicion that at least some members of the judiciary write judgments by deciding on the just decision then working backwards from that to find the arguments and precedents to support it. And as Lord Neuberger reminds us, over forty years ago Lord Reid dismissed the idea that judges merely declared the law rather than playing any role in making it with the magisterial put-down that “… we do not believe in fairy tales any more”: see “The Judge as Lawmaker” (1972) Jl of Public Teachers of Law 22.

No compensation for prisoners denied the vote

While we’re on the subject of Strasbourg, on Tuesday the ECtHR handed down another judgment in relation to the denial of the vote to prisoners by the UK. In Firth & Ors v United Kingdom [2014] ECHR 874 the Fourth Section held by five votes to two that there had been a violation of Article 3 of Protocol No 1 to the Convention (free elections). However, it held unanimously that the finding of a violation was of itself sufficient just satisfaction for any non-pecuniary damage and made no award. Nor did it make any  award as to costs. Great rejoicing in Whitehall, no doubt – but the major problem of compliance with Hirst v United Kingdom (No 2) [2009] ECHR 2260  and Scoppola v Italy (No 3) [2012] ECHR 868 remains.

The Tricycle Theatre and the Jewish Film Festival again

In last week’s round-up we noted that the Tricycle Theatre in Kilburn had refused to host the UK Jewish Film Festival for the first time in eight years on the grounds that the festival was partly funded by the Israeli Embassy. The Tricycle has now relented and a joint statement has been published stating inter alia that:

“Following lengthy discussions between the Tricycle and UKJFF, the Tricycle has now withdrawn its objection and invited back the UK Jewish Film Festival on the same terms as in previous years with no restrictions on funding from the Embassy of Israel in London. The UKJFF and the Tricycle have agreed to work together to rebuild their relationship and although the festival is not able to return in 2014, we hope to begin the process of rebuilding trust and confidence with a view to holding events in the future”.

EHRC call for evidence on religion and belief

The Equality and Human Rights Commission has asked an independent social research agency, NatCen, to conduct a call for evidence on the effectiveness of legislation designed to protect people who hold a religion or belief or do not hold a religion or belief. Says the EHRC: 

“We would like to hear about how your religion or belief or that of your colleagues, employees or customers has affected you at work or when using or delivering services. We are interested in your personal story; what issues came up, how you solved them and the impact on the people involved. We are equally interested in positive and negative experiences. This is an invitation to tell us your story.

We are also interested in your views about how effective the law is and where, if at all, it needs to be changed”.

EHRC is interested in hearing from employees and employers, from service users and service providers and from organisations and individuals involved in supporting or advising people in relation to religion or belief issues. The deadline for online submissions is 14 October 2014 and further information is available here.

Naming of children

We noted the publication of the ONS statistical bulletin, Baby Names in England and Wales, 2013  an event guaranteed to cheer up newspaper editors suffering from the August shortage of copy. But the secular and ecclesiastical law of England and Wales relating to names is quite complex, as we demonstrate.

Presumed consent and organ donation

The Joint Public Issues Team (JPIT) of the Methodist Church, the Baptist Union of Great Britain and the United Reformed Church has published Sharing the gift of life? on the ethics of organ donation, ahead of the forthcoming change in the law in Wales: the Human Transplantation (Wales) Act 2013 (which uses the term “deemed consent”) will come fully into effect on 1 December 2015. The JPIT guide offers a combination of real-life stories, information, theological reflection and topics for discussion.

A recent POST Note[1] PN 441, Organ Donation and Transplants, provides a useful summary of  the Human Transplantation (Wales) Act 2013 anaw 5, the new UK strategy for the improvement organ transplant rates, Taking Organ Transplantation to 2020: A UK strategy, NHSBT, 2013, and other policies to increase the availability of donor organs in the UK.

Quick links

Below is this week’s selection of links to other items &c that may be of interest to readers:

And finally: Without fear or favour Part II…

In last week’s round-up we noted United States v Odeh (ED MI, July 31, 2014), in which a Michigan federal district court judge, Paul Borman, refused to recuse himself in the trial of a Palestinian woman charged with hiding her terrorism-related past in coming to the US and applying for citizenship. The allegation was that he might be biased because of his long history of support and fund-raising for the Detroit Jewish Federation and organizing trips to Israel and that his Israeli connexions might have given him extra-judicial information relevant to the defendant’s claim that she had been beaten and raped while in Israeli custody.

Well, as it turned out we were premature: on Monday, in US v Odeh (ED MI, Aug 12, 2014) Borman J recused himself sua sponte after the prosecution had produced a translation of the Israeli indictment against Ms Odeh which revealed that the supermarket targeted in the bomb plot for which she had been convicted was part of the SuperSol chain. He explained that

“at the time of the 1969 bombing, my family had a passive financial investment connection to SuperSol…. The Court concludes that my family’s passive financial investment connection to SuperSol at the time of the 1969 bombing could be perceived as establishing a reasonably objective inference of a lack of impartiality in the context of the issues presented in this case.

I recuse today, not because of my charitable giving or my work on behalf of the Jewish Federation of Metropolitan Detroit or other charities, which I concluded in my previous Order created neither the reasonable appearance nor the fact of impartiality. My decision to recuse today is based upon facts which became known to me yesterday in review of a relevant document not previously seen by the Court….”.

With thanks once again to Religion Clause

[1] Parliamentary Office of Science and Technology: Published 12 September 2013, Amended 15 April 2014.

[2] Web conferencing.

Naming Children: England and Wales, 2013

Today the Office of National Statistics published its statistical bulletin Baby Names in England and Wales, 2013, and although its key findings are not of particular relevance for this blog[1], the naming of children is of importance in secular and ecclesiastical law.

Secular Restrictions

Earlier posts have noted that some administrations place restrictions on permissible names. However, this is not so in the UK which operates a relatively relaxed regime.  Responding to a FoI request in 2008, the General Register Office stated:

“Registrations of births in England and Wales are made under the Births and Deaths Registration Act 1953 and the Registration of Births and Deaths Regulations 1987. The legislation does not set out any guidance on what parents may name their child.

Our advice to registrars is that a name should consist of a sequence of letters and that it should not be offensive. The reason for limiting the registration of names to a sequence of letters is that a name which includes a string of numbers or symbols etc. has no intrinsic sense of being a name, however the suffix ‘II’ or ‘III’ would be allowed.

The only restriction on the length of a name is that it must be able to fit in the space provided on the registration page. There are no leaflets or booklets available giving guidance on this matter.

Where the registrar has any concerns over a name they will discuss this with the parents and point out the problems the child may face as they grow up and try to get them to reconsider their choice.”

However, should they so desire when they “are of riper years”, those using the UK Deed Poll Service will find that its requirements are more prescriptive in its requirements [but see Frank's comments below], and indicates that it will not accept an application for a name that:

  • does not include at least one forename and one surname;
  • is impossible to pronounce;
  • includes numbers or symbols;
  • includes punctuation marks that do not have a phonetic significance, although forenames or surnames linked with a hyphen,  or an apostrophe in the case of surnames like O’Brien, are permissible;
  • is vulgar, offensive or blasphemous;
  • promotes criminal activities;
  • promotes racial or religious hatred;
  • promotes the use of controlled drugs or includes the generic or slang name for them;
  • ridicules people, groups, government departments, companies or organisations;
  • may result in others believing you have a conferred or inherited honour, title, rank or academic award, for example, a change of first name to Sir, Lord, Laird, Lady, Prince, Princess, Viscount, Baron, Baroness, General, Captain, Professor or Doctor etc.
  • exceeds the maximum number of characters allowed in a name.

Ecclesiastical provisions

The relationship between the registration of a birth and the name used during christening is explained in the Church of England’s Top 10 facts about Christenings which states:

“Your baby’s name is given when you register the birth. During the baptism, the baby’s name will be used often, and when the water is poured over the child’s head, the vicar will always use the name,”

and any concerns of the priest regarding a particular name are limited by Canon B22 Of the baptism of infants, viz.

“4. No minister shall refuse or, save for the purpose of preparing or instructing the parents or guardians or godparents, delay to baptize any infant within his cure that is brought to the church to be baptized, provided that due notice has been given and the provisions relating to godparents in these Canons are observed.”

For the public baptism of infants, the rubric in the Book of Common Prayer states

“Then the Priest shall take the Child into his hands, and shall say to the Godfathers and Godmothers, Name this Child. And then naming it after them (if they shall certify him that the Child may well endure it) he shall dip it in the Water discreetly and warily, saying,

N. I baptize thee in the Name of the Father, and of the Son, and of the Holy Ghost. Amen.”

The phrase “name this child” is shorthand for “what is the name of this child”, and is omitted from the baptism service in Common Worship.

13 interesting facts about baby names, 1996-2013

Of most interest to the media will be the ONS list of 13 interesting facts about baby names, 1996-2013. These include:

  • A baby girl born in 2013 was more likely to have a unique name than a baby boy: In 2013, there were more than 27,000 different boys names, and more than 35,000 different girls names;
  • A royal flush: William, Harry and George jostle for 1st place in the top ten names given to boys in 2013;
  • The Harry Potter effect: Draco, Sirius and Bellatrix have all appeared on the baby names lists; [but not in significant numbers]
  • Cristiano and Thierry both have peaks that correspond with Ronaldo and Henry’s times at English football clubs; [again, the number of children so named is very small, 33 and 51 respectively, but an order of magnitude higher than Draco, Sirius and Bellatrix];
  • The Beckham’s baby Harper had the biggest impact on baby names?

Readers will be aware that correlation does not imply causation, but will nevertheless find the new data interesting; but those seeking a name for an expected child may be daunted by the 62,000 children’s names currently in use.

________________________

[1] Oliver and Amelia were the most popular first names given to babies born in England and Wales in 2013. Amelia has been in the top spot since 2011 while Oliver replaced Harry, the top name in 2011 and 2012; In England, Amelia was the most popular name in all regions and Oliver was the most popular name in five out of the nine regions; In Wales, Oliver was the most popular name, replacing Jacob, while Amelia has been the most popular name since 2012; Oscar and George replaced Alfie and Riley in the top 10 most popular names, climbing from number 17 to 7 and number 12 to 10 respectively; Poppy replaced Lily in the top 10 most popular names, climbing from number 13 to 7.