The freedom not to believe

If you are unfortunate enough to live under an oppressive regime but have never been involved in active opposition to it, can you legitimately claim asylum in the UK on the grounds that the regime is generally nasty and persecutes people unless they profess loyalty to it? Or should you merely have kept out of trouble back home by keeping your mouth shut so far as you could, and lying when asked about your political opinions?

In RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38 (25 July 2012) the Supreme Court came down on the side of the refugees in such circumstances, ruling that an asylum claim could not be rejected simply on the grounds that the claimants could have avoided persecution by lying and feigning loyalty to the regime. In doing so, the Court followed its decision in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention and that it was no answer to his asylum claim that he could conceal his sexuality in order to avoid persecution. As Rosalind English points out on the UK Human Rights Blog, the appalling Mugabe regime is so paranoid that it expects regular affirmations of loyalty, with the result that Zimbabweans who hold no political opinions are just as likely to be persecuted as opponents of the regime. So the Court was asked to decide a negative – whether the freedom not to hold political opinions was a protected right – and held that it was indeed protected.

But what has all this to do with religion?

In the judgment of the Court (to which Lord Kerr added a very short concurring opinion), Lord Dyson pointed (at para 33) to Articles 18 and 19 of the Universal Declaration of Human Rights 1948, which are given effect internationally by Articles 18 and 19 of the International Covenant on Civil and Political Rights 1966:

“Article 18 of the ICCPR deals with the right to freedom of thought, conscience and religion. Article 19 deals with the right to freedom of opinion and expression. The United Nations Human Rights Committee has commented on these rights. In its General Comment No 22 on Article 18 (30 July 1993), it said that the right to freedom of thought, conscience and religion in Article 18.1 is ‘far-reaching and profound’ (para 1); the terms ‘belief’ and ‘religion’ are to be ‘broadly construed’ (para 2); and article 18 protects ‘theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief’ (para 2). In its General Comment No 34 on article 19 (12 September 2011), it said that freedom of opinion and freedom of expression are ‘indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society’ (para 2). All forms of opinion are protected (para 9). At para 10, it said: ‘Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.’.”

Further, at para 35 Lord Dyson cited with approval Buscarini & Ors v San Marino (24645/94 [1999] ECHR 7 (18 February 1999). In Buscarini the applicants objected to being obliged to swear an oath on the Gospels in order to take their seats in the San Marino Parliament and the Grand Chamber of the ECtHR unanimously concluded that this was incompatible with Article 9 ECHR (thought, conscience and religion), adding (at para 34) that the freedom enshrined in Article 9 “… entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.”

He concluded that

“… under both international and European human rights law, the right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to express opinions. It is true that much of the case-law and commentary is on freedom of belief in the context of religion, rather than other kinds of belief (whether political, philosophical or otherwise). But I see no basis for distinguishing between the freedom to hold and express different kinds of belief here.” (para 39).

Moreover, Lord Dyson rejected the idea of any implicit “hierarchy of rights”:

“… [T]he right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and … the Convention too. There is nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. He should not be required to dissemble on pain of persecution. Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution. A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle.” (para 42: emphasis added).

Comment: Though RT (Zimbabwe) & Ors was about the right not to hold political opinions rather than religious ones, it serves to underline the fact that the protections in international law for the forum internum are for thought and conscience as well as for religion – and that they are intended to protect the atheist, the agnostic and the indifferent as much as the devoutly-religious.

In an interview in the Daily Telegraph on 19 June 2011, Trevor Phillips, the Chairman of the Equality and Human Rights Commission, was quoted as saying, inter alia:

“Our business is defending the believer. The law we’re here to implement recognises that religious identity is an essential part of this society. It’s an essential element of being a fulfilled human being.”

True: but true only up to a point. As the Supreme Court has just confirmed, the business of the Equality and Human Rights Commission – and of the courts – is defending the believer and the non-believer alike.

Public appointments in Northern Ireland: update

On 1 July I posted an item on the judgment in Lennon v Department for Regional Development [2012] NIFET 00075 11FET (19 June 2012) about an allegation by Dr Alan Lennon, an unsuccessful candidate for the Chair of Northern Ireland Water, of unlawful discrimination in the appointing process. Dr Lennon claimed that though he had been the better-qualified candidate he was not appointed because he was a Protestant. The Fair Employment Tribunal upheld his allegation of unlawful discrimination on the ground of religious belief but dismissed his further complaint of unlawful discrimination on the ground of political opinion.

By the time the decision was announced the Minister who made the appointment, Conor Murphy MLA of Sinn Féin, had been replaced as Minister for Regional Development by Danny Kennedy MLA of the Ulster Unionist Party. Mr Murphy rejected the Tribunal’s findings in scathing terms and it was thought that the Department for Regional Development would appeal. However, Mr Kennedy has now announced that the Department does not intend to appeal after all, on the grounds that to do so would not be in the public interest. In his view, the prospect of success in any appeal is at best uncertain; moreover:

“Substantial public money has already been spent contesting this case and I have considered the additional significant costs of any appeal in making my decision. Both sides have been funded by public money and this would continue to be the case in further proceedings. Even if an appeal was successful this may result in further proceedings before a Tribunal, incurring a greater cost to the public purse. Such costs are unquantifiable at this time.”

Comment: Needless to say, the decision has been greeted with fury by Mr Murphy, who is reported by the BBC as accusing his Ulster Unionist successor of “scoring cheap political points at the expense of the truth” and saying that he would be seeking further legal advice – presumably about the possibility of judicial review. This has evidently progressed from the relatively calm waters of “law and religion” to the much choppier seas of “politics and religion” – at which point it probably drifts beyond the horizons of this blog.

24/7 Marriage in UK

On 1st July 2010, a web site was launched by the Deputy Prime Minister to which the public was asked to submit . . . ‘ideas on restoring civil liberties, cutting business and third sector regulations and repealing unnecessary laws’.  This your-freedom web site is now closed, although its content is available via the National Archives, and a similar outlet for suggestions by the public is available through the e-petitions scheme launched about one year later.

However, the DPM’s initiative resulted in the Protection of Freedoms Act 2012, which contains a number of disparate measures on issues raised during the consultation process, including: rules for the destruction of samples and impressions of footwear subject to PACE; a Code of Practice for surveillance camera systems; alternative remedies in relation to vehicles left on land; pre-charge detention of terrorist suspects; and trafficking people for sexual exploitation.

Hidden among these provisions is section 114 which provides for the removal of certain restrictions on the permissible times for marriage and civil partnership through modification to the Marriage Act 1949, Marriage (Registrar General’s Licence) Act 1970, and the Civil Partnership Act 2004.  When it comes into force, the change in the law will bring England and Wales into line with Scotland and Northern Ireland, but to date the Secretary of States has not published the appropriate Commencement Order.

Canonical hours

The early requirements of the Church of England on the prescribed canonical hours for marriage were based upon pre-Reformation canon law, much of which was in place by the end of the 13th century.  Canon 62 of the 1603 Canons required priests, under penalty of suspension, to conduct the marriage ceremony between ‘hours of eight and twelve in the forenoon’ and ‘at the church door’, i.e. in public.  The reforms within Lord Hardwicke’s Act of 1753 – ‘An Act for the better preventing of clandestine marriages’ – included severe penalties on clergy who contravened its provisions, echoes of which still remained in the 1949 Marriage Act.  The introduction of civil marriages in 1837 applied the same time restrictions as Canon 62.  These statutory limitations were extended to 3 p.m. in 1886, and to the present time of 6 p.m. in 1934.  The Church of England Canons were amended to reflect the statutory provisions, and the current version, Canon B35(3), states:

A marriage may not be solemnized at any unseasonable hours but only between the hours of eight in the forenoon and six in the afternoon. 

Prohibited Seasons for Marriage

In addition to the limitations of canonical hours, the early church defined ‘closed seasons’ for marriage – Lent, Advent, and Rogationtide – although it took advantage of the situation by charging more for permitting marriages to occur during these periods.  Some churches continue to discourage marriage during the penitential seasons, but there are no canonical restrictions, and in fact, Common Worship specifies the readings and Collects for use

‘[at] Baptisms, Confirmations, Ordinations and Marriages which take place on Principal Feasts, other Principal Holy Days and on Sundays of Advent, Lent and Easter’. 

Comment

Although reports have suggested ‘couples will be able to marry at any time of the day or night in England and Wales from October’, this is not strictly true and adumbrates the complexity of the legal position.  A statement by the Home Office, quoted by the Church Times, confirms the discretionary aspect of these provisions,

neither local authorities nor religious groups are required to provide services outside of the traditional hours’. 

It further notes:

marriages conducted by the Society of Friends, or in accordance with the Jewish faith, as well as some marriages approved on the authority of the Archbishop of Canterbury’s special licence, are already permitted’. 

The revocation of section 4 of the 1949 Marriage Act merely removes the statutory restriction on the times for marriage.  As such, the existing hours defined in Canon B 35(3) remain unaffected, and a Church of England priest would be committing an ecclesiastical offence under the Clergy Discipline Measure 2003 if he or she conducted a marriage outside these hours, unless this were under the provisions of a Special Licence which permitted the marriage to take place outside canonical hours on medical grounds.

On its disestablishment in 1920, the Church in Wales retained the advantages of ‘ecclesiastical marriage’ including the provision of Special Licences, and although its clergy are not subject to the 2003 Measure, they are bound by canonical obedience to the directions of the bishop, (Const. VII.66).

Comprehensive guidance has been provided by Church House lawyers which additionally identifies the repeal of the criminal offence in section 75(1)(a) of solemnizing a marriage outside the permitted hours, which carried a sentence of imprisonment of up to 14 years.  The guidance also clarifies the vexed question of what to do when a wedding scheduled close to the deadline is delayed by the late arrival of the bride – a not uncommon occurrence.  It advises:

‘[t]he member of the clergy officiating must say the whole rite and perform the whole ceremony (i.e. one of the authorised marriage services) by 6.00 pm.  (The registration of the marriage is required to be made immediately after the solemnization of the marriage (section 55(1) of the 1949 Act).  Signing of the registers (but not any part of the marriage service) may, therefore, take place after 6.00 pm.)’ [Emphasis added].

Despite these clarifications for clergy, there is still a communications task for the church to perform, for among the general public there remains the perception that it is possible ‘to marry at any time of the day or night’.  The Church of England has been proactive in promoting ‘church weddings’ with its dedicated web site, and although the information on ‘Time of wedding’ correctly states:

‘[t]o be legal the wedding must take place between 8am and 6pm on any day.’

for the avoidance of doubt, it should perhaps add

‘These times are unaffected by recent changes in statutory legislation’.

Charitable status, public benefit and “closed” congregations

The Exclusive Brethren associate only with each other: for example, they will not eat or drink with those with whom they do not share “table fellowship” and their services of Holy Communion are not open to non-members of the Church. And if they decide that a member has transgressed the rules of the church community, s/he may be “disfellowshipped” – in which case, the rest of the family may not associate with that person. They do have notice-boards outside their Gospel Halls advertising the times of services; but the understanding of the Charity Commission for England and Wales is that that is the limit of their engagement with the general public.

S 2(1) of the Charities Act 2011 provides that “For the purposes of the law of England and Wales, a charitable purpose is a purpose which (a) falls within section 3(1), and (b) is for the public benefit” and s 3(1)(c) includes “the advancement of religion” in the list of charitable purposes. The Charity Commission has therefore decided that the Exclusive Brethren’s Preston Down Trust does not pass the public benefit test.

The principle of public benefit as a necessary prerequisite of charitable status was established long before the Charities Act 2006: the modern authority is Gilmour v Coats [1949] AC 426, which determined that a bequest to an enclosed order of Carmelite nuns was not for the public benefit – and therefore not charitable – because the nuns did not engage with the public. What the Charities Act 2006 (consolidated into the 2011 Act) did was to give statutory effect to what was already in the common law.

The matter was raised in the House of Commons at Business Questions to the Leader of the House on 12 July (at c 495 of Commons Hansard) as follows:

Robert Halfon (Harlow) (Con): May we have an urgent debate on the anti-Christian behaviour and bias of the Charity Commission? A constituent has contacted me because the commission has revoked the charitable status of a trust that is part of the Brethren Christian Church, which does a lot of good work for charity. This is an extremely important test case because it has widespread implications for all Christian charitable trusts. Does the Leader of the House not agree that Christian groups that are serving the community have the right to charitable status and should not be subject to politically correct bias?

Sir George Young (Leader of the House): I am sure that the Charity Commission is not anti-Christian. I do not think that the organisation to which my hon. Friend refers has ever been registered as a charity, so it is not quite true to say that that status has been revoked. The application has been turned down because it was not clear whether there was enough social engagement with the community to meet the public interest criteria. As I understand it, that decision has now gone to appeal at the first tier, which I think is probably the right way to resolve it. I think he’s misunderstood and I don’t think that it does have ‘widespread implications for all Christian charitable trusts’.”

To which the short answer seems to be that – quite understandably – Mr Halfon may not have been entirely aware of the degree to which the Exclusives separate themselves from those whom they regard as “unbelievers” and was probably unaware of the rules about public benefit as a necessary prerequisite for charitable status.

As the Leader noted in his reply to Mr Halfon, the Exclusive Brethren have now decided to appeal to the First–tier Tribunal (Charity) against the decision of the Commission. The appeal was registered by trustees of the Preston Down Trust in Devon and the Horsforth Gospel Hall Trust in Leeds: notice was given on 19 July.

On 25 July Third Sector reported a Commission spokeswoman as saying that the decision to deny charitable status to the Preston Down Trust:

“… took into account the nature of Christian religion embraced by the trust and the means through which this was promoted, including the public access to its services and the potential for its beneficial impact on the wider community” and that the Horsforth Gospel Hall could be affected by the outcome of the case because “[i]t, along with a small number of Exclusive Brethren organisations, was registered prior to the implementation of the Charities Act 2006 on the basis of the law as it was then understood. The 2006 Act removed the presumption of public benefit from certain classes of charity including religious charities. The central issue in the appeal will be whether the public benefit requirement is satisfied in relation to Exclusive Brethren organisations under the law as it now is.”

She concluded that the Commission “welcomed this opportunity for the law to be clarified in this area as it affects the Exclusive Brethren”.

Comment: In another part of the legal forest, the Church of Jesus Christ of Latter-Day Saints is pursuing an appeal to Strasbourg over the refusal of the local Valuation Officer to give an exemption from business rates under the Places of Worship Registration Act 1855 to the LDS Temple and some of its associated buildings in Preston: see Church of Jesus Christ of Latter-Day Saints v Henning (Valuation Officer) [1964] AC 420, Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56 (30 July 2008) and Church of Jesus Christ of Latter-Day Saints v United Kingdom 7552/09 [2011] ECHR 733 (12 April 2011). The LDS lost in the domestic courts on the grounds that whatever Mormons do in their Temples it is not public worship. Not even all Mormons are allowed into a Temple – in order to be admitted they have to have a “Temple recommend” from the local bishop – and in no circumstances whatsoever are non-Mormons let in.

The position of the “Exclusive” Brethren looks very similar to that of the Mormon Temple cases: precisely what is “public” about a closed communion service? But as to Sir George’s assertion in the House of Commons that “I don’t think that it does have ‘widespread implications for all Christian charitable trusts’” I am not so sure as he seems to be. It very much depends on the precise terms of the First–tier Tribunal’s judgment. If it deals exclusively with the Exclusives then it is unlikely to have any more general impact; but if it is couched in very general terms it will require very careful reading indeed. But we’ll have to cross that bridge when we come to it.

Finally, the “Plymouth”, “Open” or Christian Brethren are a small Conservative Evangelical Church with very particular views on such matters as not having clergy and not having a set liturgy – the distinguished Biblical scholar Frederick Fyvie Bruce was one of their number. They have nothing whatsoever to do with any of the foregoing – but (with the honourable exception of Third Sector) press reports of the dispute keep confusing the issue by mentioning “Plymouth” Brethren, presumably because the authors do not fully understand the distinction between the two Churches.

Updates: Third  Sector subsequently reported that Rod Buckley, a member of Preston Down Trust, had told it later that it does, in fact, allow non-members to attend services.

For an Australian case on very similar facts, also involving the Exclusive Brethren, see Jensen & Ors v Brisbane City Council [2005] QCA 469 (14 December 2005), in which the Supreme Court of Queensland decided as follows:

“Private worship by a congregation is not ‘public worship’, at least insofar as that term is to be understood in the context of rating exemptions, and it does not become public worship because the congregation may decide to permit particular members of the public to attend that worship. ‘Public worship’ in the present rating context requires that the worship is in a place open to all properly disposed persons who wish to be present without vetting by a gatekeeper” (at para 49).

 

Cite this article as: Frank Cranmer, "Charitable status, public benefit and “closed” congregations" in Law & Religion UK, 27 July 2012, http://www.lawandreligionuk.com/2012/07/27/charitable-status-public-benefit-and-closed-congregations/

London Olympics 2012 – Summoned by Bells?

At 08-12 tomorrow morning, anyone with access to any type of bell, from those on cycles to those in church towers, is encouraged to ring them ‘as quickly and as loudly as possible for three minutes’.  This is to form part of Work No. 1197, devised by Turner Prize-winning artist and musician Martin Creed and commissioned by the London 2012 Festival to mark the start of the Olympic and Paralympics.  Continue reading

Clerical trades unions: a Grand Chamber referral

At the request of the Government of Romania the Grand Chamber panel of five judges has decided to refer the case of Sindicatul Păstorul Cel Bun v Romania 2330/09 [2012] ECHR (31 January 2012) to the Grand Chamber. (The Third Section judgment is available only in French, but the Court has published an information note in English on the judgment and the Strasbourg Consortium has provided an unofficial English translation.)

Sindicatul Păstorul Cel Bun (the Union of the Good Shepherd) was set up by clergy and lay members of the Orthodox Church. Its aim, as set out in its statutes, is to defend the professional, economic, social and cultural interests of its members, both clerical and lay, in their dealings with the Church hierarchy and the Ministry of Cultural and Religious Affairs. The union applied to the district court to be granted legal personality and to be entered in the official register of trade unions but representatives of the Archdiocese objected, arguing that the internal regulations of the Orthodox Church prohibited the creation of any kind of association without the prior consent of the Archbishop. The public prosecutor supported the application but the county court rejected the application.

Before the Third Section hearing Sindicatul Păstorul Cel Bun argued that the domestic authorities’ refusal infringed its trade union rights under Article 11 ECHR (freedom of assembly and association). The reasons given by the domestic court to justify the interference had been of a purely religious nature: it had not examined the repercussions of the employment contract on the employer-employee relationship, the distinction between members of the clergy and lay employees of the Church or the issue as to whether or not the ecclesiastical rules prohibiting union membership were compatible with the domestic and international regulations enshrining the right of employees to belong to a trades union. The domestic court had also based its refusal to register the union on the provisions of the Orthodox Church’s Statute which had entered into force in 2008 – after the members of the union had taken up their duties within the Church. Moreover, the right of employees of the Orthodox Church to join a trades union had already been recognised by the domestic courts on at least two previous occasions. Though that recognition had predated the entry into force of the Statute of the Orthodox Church in 2008, the fact remained that two unions had been set up for Orthodox clergy without having been declared unlawful or incompatible with democracy – in view of which the grounds relied on by the county court appeared insufficient to justify the refusal of the applicant trade union’s request for registration.

In particular, the Third Section held that:

 “… the relationship based on an employment contract cannot be “clericalised” to the point of escaping any rule of civil law (see, mutatis mutandis, Schüth v Germany, No. 1620-1603, § 70, ECHR 2010). It concludes that the clergy and, even more so, lay employees of the Church cannot be removed from the scope of Article 11. National authorities may at most impose “lawful restrictions” in accordance with Article 11(2) of the Convention” (para 65).

Accordingly, in the absence of a “pressing social need” or of sufficient reasons the Court held, by five votes to two, that there had indeed been a violation of Article 11. It is that finding that has now been appealed.

Comment: This looks like a classic example of “clashing rights”: the rights of workers to associate under Article 11 and the right of a Church under Article 9 to organise itself according to its canon law. The European Centre for Law & Justice has argued that the judgment

“… changes the doctrine of the Court regarding important aspects of the protection of religious freedom. Among other problem areas, this judgment analyses the facts not in terms of religious freedom (protecting the rights of others), but in terms of public order; so without asking whether the non-recognition of the union could be justified by respect for religious freedom of the Church, the Section was satisfied to certify that the union did not constitute a threat to public order and democracy, and that therefore it should have been legally recognised. In order to do this, the Section linked the respect of the rights of the Church not to religious freedom, but to public order: that is the Court’s fundamental error”.

For my part, however, I am not entirely convinced by this, because when Church employees lose their jobs they may sometimes lose their livelihoods as well. For a cleric, to be inhibited from exercising one’s ministry throughout the denomination in which one has been ordained is a far greater blow than, say, redundancy for an accountant or a solicitor. And what conceivable argument can there be for prohibiting lay employees from joining a union? As the Third Section pointed out in the passage quoted above, “the relationship based on an employment contract cannot be ‘clericalised’ to the point of escaping any rule of civil law”. Quite so – but, of course, the Grand Chamber may take a different view.

Cite this article as: Frank Cranmer, "Clerical trades unions: a Grand Chamber referral" in Law & Religion UK, 25 July 2012, http://www.lawandreligionuk.com/2012/07/25/clerical-trades-unions-a-grand-chamber-referral/

Scotland to introduce same-sex marriage

The Scottish Government has announced that it intends to legislate to introduce same-sex marriage – however, the necessary legislation “will be accompanied by important protections for freedom of speech and religion” and “no religious body will be compelled to conduct same-sex marriages”.

The press release notes that protection for religious bodies who do not wish to conduct same-sex marriages already exists under UK equality law; and the Scottish Government intends that where a body does decide to conduct same-sex marriages, individual celebrants who consider such ceremonies to be contrary to their faith will be protected. The press release points out that Schedule 23 to the Equality Act 2010 already has exemptions from equality requirements where these are necessary to comply with the doctrine of the organisation or to avoid conflict with the strongly held religious convictions of a significant number of the followers of the religion or belief. However:

“To give certainty around this protection, we consider that an amendment to the UK Equality Act will be required. We will work with the UK Government to secure agreement to such an amendment before the formal introduction of a Bill to the Scottish Parliament and with a view to it being in place before the Bill comes into force.”

There will be a further consultation with stakeholders will now take place to inform the drafting of legislation and guidance and it will consider any additional measures that may be required to guarantee freedom of speech and religion in specific circumstances, including education.

A draft Bill will be published for consultation later in the year.

The Scottish Government also published two documents on the recent consultation:

There were 77,508 responses to the consultation. In relation to the main question on same-sex marriage (Q10), 62,057 (81 per cent) of responses were from people living in Scotland and 14,779 from people living elsewhere. In respect of the responses from those living in Scotland:

  • Of standard responses, postcards and petitions taken together, 36 per cent of respondents were in favour of same-sex marriage and 64 per cent against.
  • Of standard responses only, the situation was almost precisely reversed: 65 per cent of Scottish respondents were in favour of same sex marriage and 35 per cent against.

The analysis notes that though the majority came down firmly on one side of the argument or the other there was a consensus between the two sides that religious bodies or celebrants should not be required to undertake ceremonies which they were not comfortable with. Although approaching the basic proposals from very different starting points 93 per cent of respondents agreed that individual religious celebrants should not be required to solemnise same-sex marriages.